EXHIBIT 1.1
EXECUTION COPY
$90,000,000
THE MONEY STORE INC.
THE MONEY STORE BUSINESS LOAN BACKED CERTIFICATES
SERIES 1997-1
UNDERWRITING AGREEMENT
March 21, 1997
Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Money Store Inc., a New Jersey corporation (the "Company") and The
Money Store Commercial Mortgage Inc., a New Jersey corporation (the "Seller"),
hereby confirm their agreement with Prudential Securities Incorporated (the
"Underwriter") with respect to the delivery by the Seller, of certificates
entitled "The Money Store Business Loan Backed Certificates, Series 1997-1,
Class A (the "Class A Certificates"), Class M (the "Class M Certificates") and
Class B (the "Class B Certificates," and together with the Class A Certificates
and the Class M Certificates, the "Certificates"), to be issued pursuant to a
Pooling and Servicing Agreement, to be dated as of February 28, 1997 (the
"Pooling and Servicing Agreement"), among the Company, as Representative, The
Money Store Commercial Mortgage Inc. ("TMSCMI" or the "Seller"), as servicer (in
such capacity, the "Servicer"), and Marine Midland Bank, as trustee ("Marine
Midland" or, in its capacity as trustee under the Pooling and Servicing
Agreement, the "Trustee"). The initial aggregate principal amount of the Class A
Certificates shall be approximately $75,600,000, the initial aggregate principal
amount of the Class M Certificates shall be approximately $7,200,000, and the
initial aggregate principal amount of the Class B Certificates shall be
approximately $7,200,000. The Certificates represent the entire beneficial
ownership interest in a trust fund (the "Trust Fund") created by the Seller
which consists primarily of the right to receive payments and other recoveries
attributable to a certain pool of loans (the "Business Loans").
Prior to the delivery of the Certificates by the Seller, and the public
offering thereof by the Underwriter, the Seller and the Underwriter shall enter
into an agreement substantially in the form of Exhibit A hereto (the "Pricing
Agreement"). The Pricing Agreement shall be between the Seller and the
Underwriter and shall specify such applicable information as is indicated in,
and be in substantially the form of, Exhibit A hereto. The offering of the
Certificates 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.
As February 28, 1997, the aggregate principal amount of the Business Loans
equaled approximately $87,808,810.42. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement.
The Seller understands that the Underwriter proposes to make a public
offering of the Certificates as soon as the Underwriter deems advisable after
the Pricing Agreement has been executed and delivered.
Section 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLER.
(a) The Company and the Seller represent and warrant to the Underwriter 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) The Seller has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. 333-20817) including a prospectus,
and such amendments thereto as may have been required to the
date hereof, relating to the Certificates 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 Certificates 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 the Company 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 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 Underwriter by
the Company for use in connection with the offering of the
Certificates 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 Underwriter 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 the
Company in writing by the Underwriter expressly for use in the
Registration Statement or Prospectus; and provided further,
that neither the Company nor the Seller make any
representations or warranties as to any information in any
Computational Materials (as defined
below) provided by the Underwriter to the Company pursuant to
Section 10. The conditions to the use by the Company 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, whether or not arising in the
ordinary course of business, which would have a material
adverse effect on the ability of the Seller 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, other than those in the ordinary
course of business, which would have a material adverse effect
on the ability of the Seller to perform its obligations under
this Agreement, the Pricing Agreement and the Pooling and
Servicing Agreement (this Agreement, the Pricing Agreement and
the Pooling and Servicing Agreement being herein referred to,
collectively, as the "Basic Documents").
(iv) The Seller 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 the Seller 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 Seller's ability 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 the Seller.
(v) Any person who signed this Agreement on behalf of
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 the Company 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 has been duly and validly
authorized by the Seller and, when executed and delivered by
the Seller and duly and validly authorized, executed and
delivered by the other parties thereto, will constitute, the
valid and binding agreement of such Seller, 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 conform in all
material respects to the statements relating thereto contained
in the Prospectus.
(vii) The Certificates have been duly and validly
authorized by the Servicer and, when executed and delivered by
the Servicer and authenticated by the Trustee as specified in
the Pooling and Servicing Agreement and delivered to the
Underwriter pursuant to this Agreement, the Certificates will
be duly and validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement; and the
Certificates conform in all material respects to all
statements relating thereto contained in the Prospectus.
(viii) Neither the issuance or delivery of 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 the Seller of the
Basic Documents to which it is a party, nor the fulfillment of
the terms of the Certificates or each such Basic Document will
result in the breach of any term or provision of the charter
or by-laws of the Seller, and the Seller is not 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 such Seller is a party or by
which it may be bound, or to which any of the property or
assets of such Seller is subject, or (B) any law, decree,
order, rule or regulation applicable to such Seller or
the Business Loans of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, or
arbitrator having jurisdiction over such Seller or their
properties or the Business Loans, the default in or the breach
or violation of which would have a material adverse effect on
such Seller or the ability of such Seller to perform its
obligations under the Basic Documents to which it is a
party; and neither the issuance or delivery of the
Certificates, nor the consummation of any other of the
transactions herein contemplated, nor the fulfillment of the
terms of 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 the
Seller, now pending, or, to the knowledge of the Seller,
threatened against the Seller, 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
Certificates, (2) seeking to prevent the issuance of 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 the Seller
of its obligations under the Basic Documents to which it is a
party, or the validity or enforceability of any Basic Document
or the Certificates or (4) seeking to adversely affect the
federal income tax attributes of the Certificates described in
the Prospectus; all pending legal or governmental proceedings
to which the Seller is a party or of which any of its 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 such Seller's ability to perform its obligations
under the Basic Documents to which it is a party.
(x) The Seller 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 Certificates) and the Seller has not
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 Seller to perform its
obligations under the Basic Documents.
(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 Certificates
hereunder, except such as may be required under the 1933 Act
or the 1933 Act Regulations or state securities laws.
(xii) Upon delivery to the Underwriter of the
Certificates, the Underwriter will have good and marketable
title to the Certificates free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(xiii) 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
Certificates which have become due or will become due on or
prior to Closing Time shall have been paid at or prior to
Closing Time.
(xiv) The Trust Fund is not required to be registered
as an "investment company" under the Investment Company Act of
1940 (the "1940 Act").
(b) Any certificate signed by any officer of the Seller and delivered to
the Underwriter or counsel for the Underwriter shall be deemed a representation
and warranty by such Seller as to the matters covered thereby.
Section 2. DELIVERY TO THE UNDERWRITER; 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
deliver the Certificates to the Underwriter. In the event that the initial
remittance rates and prices for each Class of Certificates 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
Underwriter 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 Underwriter and the Seller, at 11:00 A.M.,
New York City time, on March 27, 1997, or such other time not later than ten
business days after such date as shall be agreed upon by the Underwriter and the
Seller (such time and date of payment and delivery being herein called "Closing
Time").
(c) The Certificates will initially be represented as follows:
(i) The Class A Certificates will initially be
represented by one or more certificates registered in the name
of Cede & Co., the nominee of The Depository Trust Company
("DTC").
(ii) The Class M Certificates will initially be
represented by one or more certificates registered in the name
of Cede & Co., the nominee of DTC.
(iii) The Class B Certificates will initially be
represented by one or more certificates registered in the name
of Cede & Co., the nominee of DTC.
provided, however, that one Class B Certificate in an
initial principal amount of less than $1,000 (the "Tail
Certificate") may be issued in definitive form registered in
the name of the Underwriter or its designee.
For purposes of this Agreement, all Certificates 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 Certificates."
The interests of beneficial owners of the DTC Certificates will be
represented by book entries on the records of DTC and participating members
thereof. Definitive certificates evidencing the Certificates will be available
in exchange for DTC Certificates only under the limited circumstances specified
in the Pooling and Servicing Agreement. The DTC Certificates and Tail
Certificate to be purchased by the Underwriter will be delivered by the Seller
to the Underwriter (which delivery in the case of the DTC Certificates shall be
made through the facilities of DTC) against payment of the purchase price
therefor. The Underwriter hereby agrees, subject to the terms, conditions and
provisions hereof, to purchase from the Seller (x) the Class A Certificates, at
a price of 99.625%, such price being equal to 100% LESS an underwriting discount
of 0.375%, (y) the Class M Certificates, at the price of 99.50% equal to 100%
less an underwriting discount of 0.50% and (z) the Class B Certificates, at the
price of 99.50%, such price being equal to 100% less an underwriting discount of
0.50%. The purchase price shall be paid by the Underwriter by a same day federal
funds wire payable to the order of the Seller. The Certificates will be made
available for examination by the Underwriter not later than 10:00 A.M. on the
last business day prior to Closing Time.
(d) The Class A Certificates, the Class M Certificates and the Class B
Certificates 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 THE COMPANY AND THE SELLER. The Company and the
Seller covenant with the Underwriter as follows:
(a) The Seller will promptly notify the Underwriter, 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 the Seller of any
notification with respect to the suspension of the qualification of the
Certificates for sale in any jurisdiction or the initiation or threatening of
any proceedings for that purpose. 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) The Seller will give the Underwriter notice of its intention to file or
prepare any amendment to the Registration Statement or any amendment or
supplement to the Prospectus (including any revised prospectus which the Seller
proposes for use by the Underwriter in connection with the offering of the
Certificates 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 Underwriter 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 Underwriter or
counsel for the Underwriter shall reasonably object.
(c) The Seller will deliver to the Underwriter 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
Underwriter may reasonably request.
(d) The Seller will furnish to the Underwriter, 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 Underwriter 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 Underwriter, 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, 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 the Seller will furnish to the Underwriter a
reasonable number of copies of such amendment or supplement.
(f) The Seller will endeavor, in cooperation with the Underwriter, to
qualify the Certificates for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Underwriter may designate; provided, however, that Seller shall not be obligated
to qualify as a foreign corporation in any jurisdiction in which it is not so
qualified. In each jurisdiction in which the Certificates have been so
qualified, 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) 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 Certificates shall be outstanding, the Seller will
deliver to the Underwriter, as promptly as practicable, such information
concerning the Seller or the Certificates as the Underwriter may reasonably
request from time to time.
Section 4. PAYMENT OF EXPENSES. The Seller will pay all expenses incident
to the performance of its 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 10); (ii) the
reproducing of the Basic Documents; (iii) the preparation, printing, issuance
and delivery of the certificates for the DTC Certificates to the Underwriter;
(iv) the fees and disbursements of (A) the Underwriter's counsel, (B) KPMG Peat
Marwick, accountants for the Company and issuer of the comfort letter, (C) the
Trustee and its counsel and (D) DTC in connection with the book-entry
registration of the DTC Certificates; (v) the qualification of the Certificates
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
Underwriter in connection therewith and in connection with the preparation of
the Blue Sky Survey; (vi) the printing (or other reproducing) and delivery to
the Underwriter 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 each of
Standard's & Poor's Rating Services. ("Standard's & Poor's"), Xxxxx'x Investors
Service, Inc. ("Moody's) and Xxxx & Xxxxxx Credit Rating Co. ("Duff & Xxxxxx")
for rating the Certificates; and (viii) the reproducing and delivery to the
Underwriter of copies of the Blue Sky Survey.
If this Agreement is terminated by the Underwriter in accordance with the
provisions of Section 5 or Section 9(a)(i), the Seller shall reimburse the
Underwriter for all of its reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriter.
Section 5. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligations of
the Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Company and the Seller herein contained, to the performance by
Seller of its 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 Underwriter shall have received:
(i) The favorable opinion, dated as of Closing Time,
of Stroock & Stroock & Xxxxx LLP, counsel for the Underwriter,
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
"Description of the Certificates" and "The
Agreements" and the information in the Prospectus
Supplement under "Description of the Agreement and
the Certificates" insofar as they constitute
summaries of certain provisions of the Certificates
and the Pooling and Servicing Agreement, summarizes
fairly such provisions.
(D) The information in the Prospectus under
"Summary of Terms- Federal Income Tax Consequences,"
"Summary of Terms-ERISA Considerations," "Federal
Income Tax Consequences," "ERISA Considerations,"
"Legal Aspects of the SBA Loans," and "Risk
Factors-The Status of the SBA Loans in the Event of
Bankruptcy of an Originator" and in the Prospectus
Supplement under "Summary of Terms-Tax
Considerations," "Summary of Terms-ERISA
Considerations," "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) TMSCMI has been duly organized and is
validly existing and is in good standing under the
law of its jurisdiction of incorporation.
(F) The Seller has the power to engage in
the transactions contemplated by this Agreement, the
Pooling and Servicing Agreement, the Pricing
Agreement, the Certificates and has all requisite
power, authority and legal right to execute and
deliver this Agreement, the Pooling and Servicing
Agreement, the Pricing Agreement, the Certificates
and, with respect to TMSCMI (and any other documents
delivered in connection therewith) and to perform and
observe the terms and conditions of such instruments.
(G) The Pooling and Servicing Agreement, the
Certificates, the Pricing Agreement and this
Agreement each have been duly authorized, executed
and delivered by the Seller. Assuming due
authorization, execution and delivery by the other
parties thereto, the Pooling and Servicing Agreement,
the Certificates, the Pricing Agreement and this
Agreement are legal, valid and binding agreements
enforceable in accordance with their respective terms
against the Seller, 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) This Agreement and the Pooling and
Servicing Agreement have been duly authorized,
executed and delivered by the Company. Assuming due
authorization, execution and delivery by the other
parties thereto, this Agreement and the Pooling and
Servicing Agreement are legal, valid and binding
agreements enforceable in accordance with their terms
against the Company, subject (a) to the effect of
bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws relating to
or affecting creditors' rights generally, (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.
(I) No consent, approval, authorization or
order of any court or governmental agency or body is
required for the execution, delivery and performance
by the Seller of, or compliance by the Seller with,
the Pooling and Servicing Agreement, the Pricing
Agreement and this Agreement, or the offer, issuance,
sale or delivery of the Certificates, or the
consummation of any other transactions by the Seller
contemplated by the Pooling and Servicing Agreement,
the Pricing Agreement and this Agreement, 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.
(J) Neither the consummation of the
transactions contemplated by, nor the fulfillment of
the terms of, the Pooling and Servicing Agreement,
the Pricing Agreement and this Agreement or the
Certificates, 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 the Seller,
(b) the terms of any material indenture or other
material agreement or instrument of which counsel
has knowledge to which the Seller 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
of any court, governmental authority or regulatory
body to which the Seller is subject or by which it
is bound.
(K) The sale of the Certificates and the
delivery of each Note and Mortgage as and in the
manner contemplated by the Underwriting Agreement and
the Pooling and Servicing Agreement is sufficient
fully to transfer to the Trustee for the benefit of
the Certificateholders all right, title and interest
of the Seller in and to the Business Loan, including,
without limitation, the right to enforce each such
Business Loan in accordance with its terms to the
extent enforceable by the Seller at the time of such
sale and delivery. With respect to the transfer of
the Business Loans by the Seller, such counsel need
express no opinion as to (i) whether the laws of the
State of New York would apply to the transfer of the
Business Loans or (ii) the effectiveness of the
transfer of the Business Loans under the laws of the
jurisdiction in which TMSCMI is located or the
jurisdiction in which the Business Loans were
originated or the right of the Trustee to enforce
such Business Loans.
(L) The Certificates, assuming due execution
by the Seller, due authorization by the Trustee, and
delivery and payment therefore pursuant to the
Underwriting Agreement, will be validly issued and
outstanding and entitled to the benefits of the
Pooling and Servicing Agreement.
(M) Assuming compliance with all provisions
of the Pooling and Servicing Agreement, for federal
income tax purposes, the Trust Fund will be
classified as a "grantor trust" and not as an
association taxable as a corporation. The "Spread"
(as defined in the Registration Statement) will be
treated as "Stripped Coupons" within the meaning of
Section 1286 of the Internal Revenue Code of 1986, as
amended (the "Code"). A portion of the interest
accrued on each Business Loan will be treated as a
"Stripped Coupon" purchased by the Class B and Class
M Certificateholders. Each Class A Certificateholder
will be treated as owning its pro rata percentage
interest in the principal of, and interest payable
on, each Business Loan (minus the portion of the
interest payable on such Business Loan that is
treated as Spread, as a Stripped Coupon retained by
the Servicer, or as a Stripped Coupon purchased by
the Class B and Class M Certificateholders) and such
interest in each Business Loan will be treated as a
"Stripped Bond" within the meaning of Section 1286 of
the Code. Each Class B and Class M Certificateholder
will be treated as owning its pro rata percentage
interest in the principal of each Business Loan, plus
a disproportionate share of the interest payable on
each Business Loan (not including the Spread).
Additionally, the Trust Fund will not be subject to
New York State income or franchise tax.
(N) Neither the qualification of the Pooling
and Servicing Agreement under the Trust Indenture Act
of 1939, as amended, nor the registration of the
Trust Fund created by such Agreement under the
Investment Company Act of 1940, as amended, is
presently required.
In rendering such opinion, Stroock & Xxxxxxx & Xxxxx
LLP may rely on certificates of responsible officers of the
Company, the Seller, the Trustee, and public officials or, as
to matters of law other than New York, California or Federal
law, on opinions of other counsel (copies of which opinions
shall be delivered to you).
(ii) The favorable opinion, dated as of Closing Time,
of corporate counsel for the Seller and the Company, in form
and substance satisfactory to counsel for the Underwriter, to
the effect that:
(A) Each of TMSCMI and the Company has been
duly organized and is validly existing and is in good
standing under the laws of the State of New Jersey.
(B) The Seller has the power to engage in
the transactions contemplated by this Agreement, the
Pooling and Servicing Agreement, the Pricing
Agreement and the Certificates and has all requisite
power, authority and legal right to execute and
deliver this Agreement, the Pooling and Servicing
Agreement, the Pricing Agreement and the Certificates
(and any other documents delivered in connection
therewith) and to perform and observe the terms and
conditions of such instruments.
(C) This Agreement, the Pooling and
Servicing Agreement, the Pricing Agreement and the
Certificates each have been duly authorized, executed
and delivered by the Seller and, assuming due
authorization, execution and delivery by the other
parties thereto, are legal, valid and binding
agreements of such Seller, as the case may be, 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 such
Seller, 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.
(D) Neither the consummation of the
transactions contemplated by, nor the fulfillment of
the terms of, this Agreement, the Pooling and
Servicing Agreement, the Pricing Agreement and the
Certificates, (A) conflicts or will conflict with or
results or will result in a breach of or constitutes
or will constitute a default under the Certificates
of Incorporation or Bylaws of the Seller, or the
terms of any material indenture or other material
agreement or instrument of which such counsel has
knowledge to which the Seller is a party or by which
it is bound or to which it is subject, or (B) results
in, or will result in the creation or imposition of
any lien or encumbrance upon the Trust Fund or upon
the related Certificates, except as otherwise
contemplated by the Pooling and Servicing Agreement,
or (C) any statute or order, rule, regulations, writ,
injunction or decree of any court, governmental
authority or regulatory body to which the Seller is
subject or to which it is bound.
(E) 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
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 or in any material impairment of the right or
ability of the Seller to carry on its business
substantially as now conducted or result in any
material liability on the part of the Seller or which
would draw into question the validity of this
Agreement, the Pricing Agreement, the Certificates,
or the Pooling 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 the Seller
to perform under the terms of this Agreement, the
Pooling and Servicing Agreement, the Pricing
Agreement, the Certificates.
(F) No consent, approval, authorization or
order of any court or governmental agency or body is
required for the execution, delivery and performance
by the Seller of, or compliance by the Seller with,
this Agreement, the Pooling and Servicing Agreement,
the Pricing Agreement, the Certificates or the
consummation of the transactions contemplated
therein, except such as may be required under the
blue sky laws of any jurisdiction and such other
approvals as have been obtained.
(G) The delivery of each Business Loan as
and in the manner contemplated by the Pooling and
Servicing Agreement is sufficient fully to transfer
to the Trustee for the benefit of the
Certificateholders all right, title and interest of
the Seller in and to each such Business Loan
including, without limitation, the right to enforce
each such Business Loan in accordance with its terms
to the extent enforceable by the Seller at the time
of such delivery.
(iii) The favorable opinion, dated as of Closing
Time, of Winston & Xxxxxx, counsel for the Trustee, in form
and substance satisfactory to counsel for the Underwriter.
(iv) The favorable opinion, dated as of Closing Time,
of Xxxx X. Xxxxx, Esq., counsel for the Company, relating to
the due organization, valid existence and good standing of the
Company, the corporate power and authority of the Company to
own its assets, conduct its business and perform its
obligations under this Agreement, the due execution and
binding nature of this Agreement and the non-contravention of
this Agreement with respect to the Company's organizational
documents, law, the Company's other agreements, all in
customary form.
In giving its opinion required by subsection (b)(1) of this Section,
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 Underwriter by the Company for use in connection with
the offering of the Certificates 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 Underwriter 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 the financial, numerical,
statistical and quantitative information contained therein as to which such
counsel need express no view).
(c) At Closing Time the Underwriter shall have received from Stroock &
Stroock & Xxxxx LLP, counsel for the Underwriter, a letter, dated as of Closing
Time, authorizing the Underwriter to rely upon each opinion delivered by Xxxxxxx
& Xxxxxxx & Xxxxx LLP to each of Standard's and Poor's, Xxxxx'x and Xxxx &
Xxxxxx in connection with the issuance of the Certificates as though each such
opinion was addressed to the Underwriter and attaching a copy of each such
opinion.
(d) 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 and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the Underwriter
shall have received a certificate signed by one or more duly authorized officers
of 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) 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.
(e) At or prior to the delivery of the Prospectus Supplement, the
Underwriter shall have received from KPMG Peat Marwick a letter dated as of such
date and in form and substance satisfactory to the Underwriter, 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 such Seller
identified in such letter and (ii) certain information regarding the Business
Loans and the Business Files which are specified by the Underwriter and
contained in the Prospectus Supplement and setting forth the results of such
specified procedures.
(f) At Closing Time, the Underwriter shall have received from the Trustee a
certificate signed by one or more duly authorized officers of the Trustee, dated
as of Closing Time, as to the due acceptance of the Pooling and Servicing
Agreement by the Trustee and the due authentication of the Certificates by the
Trustee and such other matters as the Underwriter shall request.
(g) At Closing Time, the Underwriter shall have received a certificate
signed by one or more duly authorized officers of the Seller, dated as of
Closing Time to the effect that:
(i) the representations and warranties of the Seller
in the Pooling and Servicing Agreement 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) the Seller 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
Certificates;
(iii) all statements and information contained in the
Prospectus Supplement under the captions "The Seller," "The
Business Loan Pool" and "The SBA Loan Program," 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 Business Loan
Schedule required to be furnished pursuant to the Pooling and
Servicing Agreement is true and correct in all material
respects;
(v) the copies of the Charter and By-laws of the
Seller 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 which if adversely determined, individually or in the
aggregate, would adversely affect the Seller's obligations
under the Pooling and Servicing Agreement, the Pricing
Agreement or this Agreement;
(vii) each person who, as an officer or
representative of the Seller signed (a) this Agreement, (b)
the Pooling and Servicing Agreement, (c) the Certificates
issued thereunder, (d) the Pricing Agreement or (e) any other
document delivered prior hereto or on the date hereof in
connection with the purchase described in this Agreement and
the Pooling 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 Pooling
and Servicing Agreement, each of the Business Loans referred
to in the Pooling and Servicing Agreement was originated by
the Seller;
(ix) a certified true copy of the resolutions of the
board of directors of the Seller with respect to the sale of
the Certificates subject to this Agreement and the Pooling and
Servicing Agreement, which resolutions have not been amended
and remain in full force and effect;
(x) The Seller 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 Business Loans and the Certificates;
(xi) all statements contained in the Prospectus with
respect to the Company and the Seller 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;
(h) At Closing Time, the Class A Certificates shall have been rated "AAA"
by Standard's & Poor's, Aaa by Xxxxx'x and "AAA" by Duff & Xxxxxx, the Class M
Certificates shall have been rated "A" by Standard's & Poor's, A2 by Xxxxx'x and
"A" by Xxxx & Xxxxxx and the Class B Certificates shall have been rated "BBB" by
Standard's and Poor's, "Baa2" by Xxxxx'x and "BBB" by Xxxx & Xxxxxx.
(i) At Closing Time, counsel for the Underwriter 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 Certificates 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 the Company in
connection with the issuance and sale of the Certificates as herein contemplated
shall be satisfactory in form and substance to the Underwriter and counsel for
the Underwriter.
(j) 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 Certificates,
Business Loans with aggregate outstanding balances as of the Cut-Off Date of
$87,808,810.42.
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
Underwriter 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) The Company and the Seller jointly and severally agree to indemnify
and hold harmless the Underwriter and each person, if any, who controls the
Underwriter 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 the Seller; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the
reasonable fees and disbursements of counsel chosen by the
Underwriter), reasonably incurred 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 (x),
(y) and (z) of the immediately following paragraph; provided, further, such
indemnity with respect to the Prospectus or any preliminary prospectus shall not
inure to the benefit of the Underwriter (or person controlling such Underwriter)
from whom the person suffering any such loss, claim, damage or liability
purchased the 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 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 the Prospectus or any preliminary prospectus was corrected in the Prospectus.
(b) The Underwriter agrees to indemnify and hold harmless the Company and
the Seller their directors, each of the Company's and Seller's officers who
signed the Registration Statement, and each person, if any, who controls the
Company or either 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 (x) the second sentence of the fifth paragraph on the
second page which is located on the inside cover (discussing the risk of a lack
of secondary trading) of the Prospectus (or any amendment or supplement
thereto), (y) the second sentence under "Investment Considerations-Limited
Liquidity" of the Prospectus Supplement and (z) any Computational Materials,
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
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.
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, the Company and the
Seller jointly and severally, on the one hand, and the Underwriter, 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 the
Company and the Seller jointly and severally, on the one hand, and the
Underwriter, on the other hand, as incurred, in such proportions that the
Underwriter is responsible for that portion represented by the underwriting
discount on the cover page of the Prospectus bears to the initial public
offering price of the Certificates appearing thereon, (or, with respect to
Computational Materials furnished by the Underwriter, the excess of the
principal amount of the Certificates over the underwriting discount allocated to
such principal amount of Certificates); and the Company 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 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Notwithstanding the provisions of this
Section 7, the Underwriter shall not be required to contribute any amount in
excess of the amount by which the total price at which the Certificates
underwritten by the Underwriter and distributed to the public exceeds the amount
of any damages which the Underwriter has 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 the Underwriter within the
meaning of Section 15 of the 1933 Act shall have the same rights to contribution
as the Underwriter 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 the Company
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
Underwriter or any controlling person thereof, or by or on behalf of the Seller,
and shall survive delivery of the Certificates to the Underwriter.
Section 9. TERMINATION OF AGREEMENT.
(a) The Underwriter may terminate this Agreement, by notice to the Company
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 the Company or the Seller considered
as one entity which, in the Underwriter's reasonable judgment, materially
impairs the investment quality of the Certificates; (ii) 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; (iii) if any banking moratorium has been declared
by Federal or New York authorities; or (iv) 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 Underwriter's 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 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 the
Underwriter may prepare and provide to prospective investors certain
Computational Materials (as defined below) in connection with the Company's
offering of the Certificates, subject to the following conditions:
(i) The 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, Xxxxxxx & 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" shall
have the meaning given such term and the term "ABS Term
Sheets" 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
the Underwriter.
(iii) The 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 the Underwriter. The
Underwriter shall provide to the Company, for filing on Form
8-K as provided in Section 10(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 the Underwriter does not provide any
Computational Materials to the Company pursuant to subsection
(a)(iii) above, the 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 the
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 the 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 10(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 the Underwriter under Section 10(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 communications 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
Underwriter shall be directed to Prudential Securities Incorporated, Xxx Xxx
Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxx; and notices to the
Company or any Seller shall be directed to it at 0000 Xxxxxx Xxxxxx, Xxxxx, Xxx
Xxxxxx 00000, Attention: Executive Vice President.
Section 12. PARTIES. This Agreement and the Pricing Agreement shall each
inure to the benefit of and be binding upon the Underwriter, the Company, 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 Underwriter, the Company, the
Originators 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 Underwriter, the Company, 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 Certificates from the Underwriter
shall be deemed to be a successor by reason merely of such purchase. The Company
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 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.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Seller a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriter, the Seller and the Company in accordance with
its terms.
Very truly yours,
THE MONEY STORE COMMERCIAL MORTGAGE 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:
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
EXECUTION COPY
$90,000,000
THE MONEY STORE INC.
The Money Store Business Loan Backed Certificates
Series 1997-1, Class A, Class M, Class B
PRICING AGREEMENT
March 21, 1997
Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated March 21, 1997 (the
"Underwriting Agreement"), relating to $90,000,000, aggregate principal amount
of The Money Store Business Loan Backed Certificates, Series 1997-1, Class A,
Class M and Class B (collectively, the "Certificates"). The initial principal
amount of Class A, Class M and Class B Certificates shall be $75,600,000,
$7,200,000 and $7,200,000, respectively.
Pursuant to Section 2 of the Underwriting Agreement, The Money Store
Commercial Mortgage Inc. (the "Seller") agrees with Prudential Securities
Incorporated (the "Underwriter") as follows:
1. The Initial Remittance Rates on the Class A Certificates,
Class M Certificates and Class B Certificates shall be 6.40%, 6.85% and
7.10%, respectively, per annum.
2. The Underwriter's discount shall equal 0.375%, 0.50% and
0.50% of the initial principal amount of the Class A, Class M and Class
B Certificates, respectively.
3. Each Class of Certificates will be offered for sale to the
public in negotiated transactions at prices to be determined at the
time of sale.
[remainder of page intentionally blank]
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Seller a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriter and the Seller in accordance with its terms.
Very truly yours,
THE MONEY STORE COMMERCIAL MORTGAGE INC.
By: /s/ Xxxxxx Dear
Name: Xxxxxx Dear
Title: Executive Vice President
CONFIRMED AND ACCEPTED, as of
the date first above written:
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
