EXECUTION COPY
$1,265,000,000
THE MONEY STORE INC.
The Money Store Trust Asset Backed Certificates
Series 1998-A
UNDERWRITING AGREEMENT
March 26, 1998
Prudential Securities Xxxxxx Brothers Inc.
Incorporated Three World Financial Center
Xxx Xxx Xxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Money Store Inc., a New Jersey corporation (the "Company"), and
each of the Originators listed on Annex A hereto (each an "Originator" and
collectively, the "Originators") hereby confirm their agreement with Prudential
Securities Incorporated and Xxxxxx Brothers Inc. (together, the
"Representatives") on behalf of the several Underwriters listed on Annex B
hereto (the "Underwriters"), with respect to the delivery by the Company, on
behalf of the Originators, of certificates entitled "The Money Store Trust Asset
Backed Certificates, Series 1998-A," Class AF-1, Class AF-2, Class AF-3, Class
AF-4, Class AF-5, Class AF-6, Class AF-7, Class AF-8 and Class-AF-9
(collectively, the "Pool I Certificates"), Class AV (the "Pool II Certificates")
and Class AH-1, Class AH-2, Class AH-3, Class AH-4, Class AH-5, Class MH-1,
Class MH-2 and Class BH (collectively, the "Pool III Certificates," and,
together with the Pool I Certificates and the Pool II Certificates, the "Offered
Certificates") to be issued pursuant to a Pooling and Servicing Agreement, to be
dated as of February 28, 1998 (the "Pooling and Servicing Agreement"), among the
Company, as Representative, Servicer and Claims Administrator, the Originators
and The Bank of New York, as trustee ("Bank of New York" or, in its capacity as
trustee under the Pooling and Servicing Agreement, the "Trustee"). The initial
principal amount of each Class of Offered Certificates will be as set forth on
Annex B hereto. The Offered Certificates represent beneficial interests in a
trust fund (the "Trust Fund") that will consist at the Closing Time (as defined
in Section 2 hereof) primarily of three sub-trusts, consisting of: one pool of
primarily one- to four-family ("single family") fixed rate first and second lien
home equity mortgage loans and certain fixed and adjustable rate five or more
unit residential or mixed-use residential and commercial first lien mortgage
loans (the "Pool I Home Equity Loans"); one pool of adjustable rate first lien
single family home equity mortgage loans (the "Pool II Home Equity Loans"); and
one pool of home improvement mortgage loans (the "Pool III Home Improvement
Loans"), certain of which Pool III Home Improvement Loans (the "FHA Loans") are
partially insured by the Federal Housing Administration of the United States
Department of Housing and Urban Development under Title I of the National
Housing Act of 1934, amounts to be deposited in the Pre-Funding Account and
certain related properties. The Pool I Home Equity Loans, Pool II Home Equity
Loans and Pool III Home Improvement Loans are referred to herein collectively as
the "Loans." Simultaneously with the issuance and delivery of the Offered
Certificates as contemplated herein, the Company, on behalf of the Originators,
will cause to be issued under the Pooling and Servicing Agreement certificates
entitled "The Money Store Trust Asset Backed Certificates, Series 1998-A, Class
R-1 and Class R-2" (the "Class R Certificates"), and "The Money Store Trust
Asset Backed Certificates, Series 1998-A, Class X" (the "Class X Certificates"
and, together with the Offered Certificates and Class R Certificates, the
"Certificates"). The Certificates will evidence fractional interests in the
Trust Fund. The Class R Certificates and Class X Certificates will be retained
by the Company and TMS Special Holdings, Inc. and are not being delivered to the
Underwriters hereunder.
On or prior to the date of issuance of the Certificates, the Company
will obtain from MBIA Insurance Corporation ("MBIA") certificate guaranty
insurance policies (the "MBIA Policies") on behalf of the Trustee for the
benefit of the holders of the Pool I and Pool II Certificates. An election will
be made to treat certain assets of the Trust Fund as a real estate mortgage
investment conduit ("REMIC") within the meaning of Section 860D of the Internal
Revenue Code of 1986, as amended (the "Code").
Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement.
Prior to the delivery of the Offered Certificates by the Company, on
behalf of the Originators, and the public offering thereof by the Underwriters,
the Company and the Representatives, as representatives of the Underwriters,
shall enter into an agreement substantially in the form of Exhibit A hereto (the
"Pricing Agreement"). The Pricing Agreement shall be between the Company and the
Representatives, as representatives of the Underwriters, and shall specify such
applicable information as is indicated in, and be in substantially the form of,
Exhibit A hereto. The offering of the Offered 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.
The Company and the Originators understand that the Underwriters
propose to make a public offering of the Offered Certificates as soon as the
Underwriters deem advisable after the Pricing Agreement has been executed and
delivered.
Section 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
ORIGINATORS.
(a) The Company and the Originators 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) The Company, on behalf of the Originators, has filed
with the Securities and Exchange Commission (the "Commission")
registration statement on Form S-3 (No. 333-32775) including a
prospectus, and such amendments thereto as may have been required to
the date hereof, relating to the Offered 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 Offered 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
collectively 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 Representatives, as representatives of the
Underwriters, by the Company for use in connection with the offering
of the Offered 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
Representatives, as representatives of 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 the Company in writing by any
Underwriter through the Representatives expressly for use in the
Registration Statement or Prospectus; and provided further, that
neither the Company nor the Originators make any 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 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 Company, the Originators
and their 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 the Company and the
Originators to perform their obligations under the Basic Documents (as
defined below) and, in the case of the Company, the Indemnification
Agreement (as defined below) and (B) there have been no transactions
entered into by the Company or the Originators or any of their
subsidiaries, other than those in the ordinary course of business,
which would have a material adverse effect on the ability of the
Company and the Originators to perform their obligations under this
Agreement, the Pricing Agreement, the Pooling and Servicing Agreement
and the Insurance Agreement dated as of March 1, 1998 among the
Company, the Originators, the Trustee and MBIA (the "Insurance
Agreement") (this Agreement, the Pricing Agreement, the Pooling and
Servicing Agreement, and the Insurance Agreement being herein referred
to, collectively, as the "Basic Documents") and the Indemnification
Agreement to be dated as of March 1, 1998 (the "Indemnification
Agreement") among the Company, MBIA and the Underwriters.
(iv) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of New Jersey 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 and the Indemnification Agreement; and the Company 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 Company's ability to
perform its obligations under the Basic Documents and the
Indemnification Agreement, or (B) the business, properties, financial
position, operations or results of operations of the Company.
(v) Each Originator 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; and each Originator 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 Originator's ability to
perform its obligations under the Basic Documents, or (B) the
business, properties, financial position, operations or results of
operations of the Originator.
(vi) Any person who signed this Agreement on behalf of the
Company or the Originators, 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 each Originator, 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.
(vii) Any person who signs the Indemnification Agreement on
behalf of the Company, will be, as of the time of such signing and
delivery, duly elected or appointed, qualified and acting, and the
Indemnification Agreement, as so executed, will have been duly and
validly authorized, and, when executed, will constitute the valid,
legal and binding agreement of the Company, 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.
(viii) The Pooling and Servicing Agreement and the Insurance
Agreement have been duly and validly authorized by the Company and the
Originators and, when executed and delivered by the Company and the
Originators and duly and validly authorized, executed and delivered by
the other parties thereto, will constitute, the valid and binding
agreement of the Company and the Originators, 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 the Pooling and
Servicing Agreement and the MBIA Policies conform in all material
respects to the statements relating thereto contained in the
Prospectus.
(ix) The Certificates have been duly and validly authorized
by the Company and, when executed and delivered by the Company and
authenticated by the Trustee as specified in the Pooling and Servicing
Agreement and, in the case of the Offered Certificates, delivered to
the Underwriters 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.
(x) 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 and, in the case of the
Company, the Indemnification Agreement, nor the execution and delivery
by the Company and the Originators of the Basic Documents and, in the
case of the Company, the Indemnification Agreement nor the fulfillment
of the terms of the Certificates or each Basic Document and, in the
case of the Company, the Indemnification Agreement will result in the
breach of any term or provision of the charter or by-laws of the
Company and the Originators, and the Company and the Originators are
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 the
Company or the Originators are a party or by which it may be bound, or
to which any of the property or assets of the Company or the
Originators are subject, or (B) any law, decree, order, rule or
regulation applicable to the Company and the Originators of any court
or supervisory, regulatory, administrative or governmental agency,
body or authority, or arbitrator having jurisdiction over the Company
or the Originators or their properties, the default in or the breach
or violation of which would have a material adverse effect on the
Company or the Originators or the ability of the Company and the
Originators to perform their obligations under the Basic Documents
and, in the case of the Company, the Indemnification Agreement; 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 and, in the case of the Company, the Indemnification
Agreement will result in such a breach, violation or default which
would have such a material adverse effect.
(xi) Except as described in the Prospectus, there is no
action, suit or proceeding against or investigation of the Company or
any Originator, now pending, or, to the knowledge of the Company and
the Originators, threatened against the Company or any Originator,
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, the
Indemnification Agreement 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 Company or any
Originator of its obligations under the Basic Documents, or the
validity or enforceability of any Basic Document or the Certificates
and, in the case of the Company, the Indemnification Agreement or (4)
seeking to adversely affect the federal income tax attributes of the
Offered Certificates described in the Prospectus; all pending legal or
governmental proceedings to which the Company or any Originator 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 the Company's or any Originator's ability
to perform its obligations under the Basic Documents and, in the case
of the Company, the Indemnification Agreement.
(xii) The Company and each of the Originators possess 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 them
(except where the failure to possess any such license, certificate,
authority or permit would not materially and adversely affect the
holders of the Offered Certificates) and neither the Company nor any
of the Originators 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 the Company to perform its obligations
under the Basic Documents and the Indemnification Agreement.
(xiii) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
issuance or sale of the Offered Certificates hereunder, except such as
have been obtained or will be obtained prior to the Closing Date and
except as may be required under state securities laws.
(xiv) At the time of execution and delivery of the Pooling
and Servicing Agreement by the Company, the Originators and the
Trustee, the Trustee (or, with respect to the Pool III Home
Improvement Loans, the Co-Trustee) will have acquired good title on
behalf of the Trust Fund to the related Loans, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity, and, upon delivery to the Underwriters of the Offered
Certificates which they purchase, the Underwriters will have good and
marketable title to such Offered Certificates free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(xv) The transfer of the Loans to the Trust Fund at Closing
Time will be treated by the Company and the Originators for financial
accounting and reporting purposes as a sale of assets and not as a
pledge of assets to secure debt.
(xvi) Each assignment of Mortgage required to be prepared
pursuant to the Pooling and Servicing Agreement is based on forms
recently utilized by the applicable Originator with respect to
mortgaged properties located in the appropriate jurisdiction and used
in the regular course of the applicable Originator's business. Upon
execution each such assignment will be in recordable form, and it is
reasonable to believe that it will be sufficient to effect the
assignment of the Mortgage to which it relates as provided in the
Pooling and Servicing Agreement.
(xvii) Any taxes, fees and other governmental charges that
are assessed and due in connection with the execution, delivery and
issuance of the Basic Documents, the Indemnification Agreement and the
Offered 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.
(xviii) 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 Company or any
Originator and delivered to the Representatives, as representatives of the
Underwriters, or counsel for the Underwriters shall be deemed a representation
and warranty by the Company and such Originator 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 Company,
on behalf of the Originators, agrees to sell to each Underwriter, severally and
not jointly, and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company, the Offered Certificates set forth opposite its name
in Annex B hereto at the price set forth below. In the event that the pass-
through rates for each Class of Offered 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
Representatives, as representatives of the Underwriters, and the Company.
(b) Delivery of the Offered 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 Company,
at 11:00 A.M., New York City time, on March 30, 1998, or such other time not
later than ten business days after such date as shall be agreed upon by the
Representatives, as representatives of the Underwriters, and the Company (such
time and date of payment and delivery being herein called "Closing Time").
Each Class of Offered Certificates will initially be represented by
one certificate registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC") (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 Offered Certificates will be available only under the limited
circumstances specified in the Pooling and Servicing Agreement. The interest in
the DTC Certificates to be purchased by the applicable Underwriter will be
delivered by the Company to the applicable Underwriter (which delivery shall be
made through the facilities of DTC) against payment of the purchase price
therefor by a same day federal funds wire payable to the order of the Company,
equal to 99.9960323% of the aggregate initial principal amount of the Offered
Certificates plus accrued interest as set forth in the Prospectus Supplement.
Section 3. COVENANTS OF THE COMPANY AND THE ORIGINATORS. The Company
and the Originators covenant with each of the Underwriters as follows:
(a) The Company will promptly notify the Representatives, as
representatives of the Underwriters, 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 Company of any notification with
respect to the suspension of the qualification of the Offered
Certificates for sale in any jurisdiction or the initiation or
threatening of any proceedings for that purpose. The Company 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 Company will give the Representatives, as
representatives of the Underwriters, 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 Company proposes for use by the Underwriters in
connection with the offering of the Offered 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 Representatives, as representatives
of the Underwriters, 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
Representatives, as representatives of the Underwriters, or counsel
for the Underwriters shall reasonably object.
(c) The Company will deliver to the Representatives, as
representatives of the Underwriters, 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 Representatives may reasonably request.
(d) The Company will furnish to the Representatives, as
representatives of the Underwriters, 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 Representatives 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, the Company will forthwith amend or
supplement the Prospectus (in form and substance satisfactory to
counsel for the Underwriters) 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 Company
will furnish to the Representatives, as representatives of the
Underwriters, a reasonable number of copies of such amendment or
supplement.
(f) The Company and the Originators will endeavor, in
cooperation with the Representatives, as representatives of the
Underwriters, to qualify the Offered Certificates for offering and
sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Representatives, as
representatives of the Underwriters, may designate; provided, however,
that neither the Company nor any Originator 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 Offered
Certificates have been so qualified, the Company and the Originators
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) So long as any Certificates shall be outstanding, the
Company and the Originators will deliver to the Representatives, as
representatives of the Underwriters, as promptly as practicable, such
information concerning the Company, the Originators or the
Certificates as the Representatives may reasonably request from time
to time.
Section 4. PAYMENT OF EXPENSES. The Company and the Originators 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 Indemnification
Agreement; (iii) the preparation, printing, issuance and delivery of the
certificates for the DTC Certificates to the Underwriters; (iv) the fees and
disbursements of (A) the Company's counsel, (B) the Underwriters' counsel, (C)
KPMG Peat Marwick, accountants for the Company and issuer of the comfort letter,
(D) the Trustee and the Co-Trustee, if applicable, and their respective counsel
and (E) DTC in connection with the book-entry registration of the DTC
Certificates; (v) the qualification of the Offered 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
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 each of
Xxxxx'x Investors Service, Inc. ("Moody's"), Standard & Poor's Rating Services,
a division of The XxXxxx-Xxxx Companies Inc. ("Standard & Poor's") and Fitch
IBCA Inc. ("Fitch"), for rating the Offered Certificates; and (viii) the
reproducing and delivery to the Underwriters of copies of the Blue Sky Survey.
If this Agreement is terminated by the Representatives, as
representatives of the Underwriters, 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 MBIA), the Company and the
Originators shall reimburse the Underwriters severally for all of their
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, in the Representatives'
sole discretion, to the accuracy of the representations and warranties of the
Company and the Originators herein contained, to the performance by the Company
and the Originators 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 Representatives, as representatives
of the Underwriters, 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) To the best of their knowledge and
information, the Registration Statement is effective under
the 1933 Act and 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
or incorporated 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 "Description of The
Certificates," insofar as they constitute summaries of
certain provisions of the Certificates, the Pooling and
Servicing Agreement, the Insurance Agreement and the MBIA
Policies, summarizes fairly such provisions.
(D) The information in the Prospectus
under "Summary of Terms -- Federal Income Tax Consequences,"
"Summary of Terms -- ERISA Considerations," "Certain Legal
Aspects of the Mortgage Loans," "Federal Income Tax
Consequences," "ERISA Considerations" and "Risk Factors--The
Status of the Mortgage Loans in the Event of Bankruptcy of
The Representative or an Originator" and in the Prospectus
Supplement under "Summary of Terms-- REMIC Election and Tax
Status," "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) TMS Special Holdings, Inc. has been
duly incorporated and is validly existing and in good
standing under the laws of the State of Delaware. TMS
Mortgage Inc. is qualified to transact business as a foreign
corporation in, and is in good standing under the laws of,
the States of California, Florida and New York.
(F) Assuming due authorization,
execution and delivery by the other parties thereto
(including but not limited to the Originators), the Pooling
and Servicing Agreement, the Certificates, the Insurance
Agreement, the Indemnification Agreement, the Pricing
Agreement and this Agreement are legal, valid and binding
agreements enforceable in accordance with their respective
terms against the Company, 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.
(G) No consent, approval, authorization
or order of any court or governmental agency or body is
required for the execution, delivery and performance by the
Company of, or compliance by the Company with, this
Agreement, the Pooling and Servicing Agreement, the
Insurance Agreement, the Pricing Agreement and the
Indemnification Agreement or the offer, issuance, sale or
delivery of the Certificates, or the consummation of any
other transactions by the Company contemplated by this
Agreement, the Insurance Agreement, the Pooling and
Servicing Agreement, the Pricing Agreement and the
Indemnification 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.
(H) Neither the consummation of the
transactions contemplated by, nor the fulfillment of the
terms of, this Agreement, the Pooling and Servicing
Agreement, the Insurance Agreement, the Pricing Agreement,
the Indemnification Agreement and 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 terms of any material indenture or other
material agreement or instrument of which counsel has
knowledge to which the Company is a party or by which it is
bound or to which it is subject or (b) 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 Company is subject or by
which it is bound.
(I) The delivery of each Mortgage Note
and Mortgage by an Originator as and in the manner
contemplated by the Underwriting Agreement and the Pooling
and Servicing Agreement is sufficient fully to transfer to
the Trustee (or, with respect to the Pool III Home
Improvement Loans, the Co-Trustee) for the benefit of the
Certificateholders all right, title and interest of the
applicable Originator in and to each such Loan including,
without limitation, the right to enforce each such Loan in
accordance with its terms to the extent enforceable by the
related Originator at the time of such delivery. With
respect to the transfer of the Loans by the Originators,
such counsel shall express no opinion as to (i) whether the
laws of the State of New York would apply to the transfer of
the related Mortgages or (ii) the effectiveness of the
transfer of the Mortgages under the laws of the
jurisdictions in which such Originators are located (other
than Mortgages relating to Mortgaged Properties situated in
California or New York) or in which the Mortgaged Properties
are situated (other than Mortgaged Properties situated in
California or New York) or the right of the Trustee and the
Co-Trustee to enforce such Mortgages.
(J) The Certificates, assuming due
execution by the Company, 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.
(K) Assuming compliance with all
provisions of the Pooling and Servicing Agreement, for
federal income tax purposes, each of REMIC I and REMIC II
will qualify as a REMIC, the Offered Certificates and the
Class X Certificates will constitute "regular interests" in
REMIC I and the Class R-1 Certificates and the Class R-2
Certificates will each constitute a single class of
"residual interests" in REMIC I and REMIC II, respectively,
within the meaning of the REMIC Provisions. Assuming
compliance with all provisions of the Pooling and Servicing
Agreement, for New York State and City tax purposes, each of
REMIC I and REMIC II will be classified as a REMIC and not
as a corporation, partnership or trust, in conformity with
the federal income tax treatment of such assets.
Accordingly, each of REMIC I and REMIC II will be exempt
from all New York State and City taxation imposed upon its
income, franchise or capital stock. Additionally, each of
REMIC I and REMIC II will be exempt from all State of
California taxation imposed upon its income, franchise or
capital stock, other than the application of the annual
minimum tax under Section 23153 of the California Revenue
and Taxation Code.
(L) An Offered Certificate owned by a
"domestic building and loan association" within the meaning
of Section 7701(a)(19) of the Code will be considered in its
entirety to represent an interest in qualified assets within
the meaning of Section 7701(a)(19)(C)(xi) of the Code so
long as at least 95% of the REMIC I's assets consist of
assets described in Section 7701(a)(19)(C)(i) through (x) of
the Code. If less than 95% of the REMIC I's assets consist
of such items, an Offered Certificate will be considered
qualified assets in the same proportion as the REMIC I's
assets which are such items. An Offered Certificate owned by
a real estate investment trust will be considered in its
entirety an interest in "real estate assets" within the
meaning of Section 856(c)(5)(A) of the Code and interest
thereon will be considered in its entirety "interest on
obligations secured by mortgages on real property" within
the meaning of Section 856(c)(3)(B) of the Code in both
cases so long as at least 95% of the REMIC I's assets are
"real estate assets" as defined in Section 856(c)(3)(B) of
the Code. If less than 95% of the REMIC I's assets are "real
estate assets," an Offered Certificate will be considered
"real estate assets" and the interest thereon will be
considered "interest on obligations secured by mortgages on
real property" in the same proportion as the REMIC I's
assets which are "real estate assets." An Offered
Certificate will not be considered "residential loans" for
purposes of the residential loan requirement of Section
593(g)(4)(B) of the Code. An Offered Certificate held by
another REMIC will be a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code, assuming it is
transferred to the REMIC on its startup day in exchange for
regular or residual interests in such REMIC.
(M) The Pooling and Servicing Agreement
is not required to be qualified under the Trust Indenture
Act of 1939, as amended. The Trust Fund created by the
Pooling and Servicing Agreement is not required to be
registered under the Investment Company Act of 1940, as
amended.
In rendering such opinion, Stroock & Xxxxxxx & Xxxxx LLP may
rely on certificates of responsible officers of the Company, the Trustee, the
Co-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 and upon which you may rely).
(ii) The favorable opinion, dated as of Closing Time, of
counsel for the Company and the Originators, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(A) The Company has been duly organized
and is validly existing and is in good standing under the
laws of the State of New Jersey. Each Originator has been
duly organized under the laws of its jurisdiction of
incorporation and is qualified to transact business in the
laws of the states in which the Mortgaged Properties
underlying the Loans originated by each such Originator are
located or is otherwise exempt under applicable law from
such qualification. TMS Special Holdings, Inc. has been duly
organized and is validly existing and in good standing under
the laws of the State of Delaware.
(B) The Company and each of the
Originators have the power to engage in the transactions
contemplated by this Agreement, the Pooling and Servicing
Agreement, the Insurance Agreement and, in the case of the
Company, the Pricing Agreement, the Indemnification
Agreement and the Certificates, and have all requisite
power, authority and legal right to execute and deliver this
Agreement, the Pooling and Servicing Agreement, the
Insurance Agreement, and, in the case of the Company, the
Pricing Agreement, the Indemnification 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 Insurance Agreement, the Pricing
Agreement, the Indemnification Agreement and the
Certificates each have been duly authorized, executed and
delivered by the Company; this Agreement, the Pooling and
Servicing Agreement and the Insurance Agreement each have
been duly authorized, executed and delivered by each
Originator and, assuming due authorization, execution and
delivery by the other parties thereto, are legal, valid and
binding agreements of the Company and each Originator, 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 the
Company and each Originator, 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 transfer of the Loans to
the Trust Fund, the consummation of the transactions
contemplated by, nor the fulfillment of the terms of, this
Agreement, the Pooling and Servicing Agreement, the
Insurance Agreement, or in the case of the Company, the
Pricing Agreement, the Indemnification 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 Company or any Originator, or the terms of
any material indenture or other material agreement or
instrument of which such counsel has knowledge to which the
Company or any Originator are 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 Company or any Originator 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 Company or any Originator
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 Company or an
Originator or in any material impairment of the right or
ability of the Company or any Originator to carry on its
business substantially as now conducted or result in any
material liability on the part of the Company or any
Originator or which would draw into question the validity of
this Agreement, the Pricing Agreement, the Certificates, the
Insurance Agreement, the Indemnification Agreement 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 Company or any Originator to perform under
the terms of this Agreement, the Insurance Agreement or the
Pooling and Servicing Agreement, or in the case of the
Company, the Pricing Agreement, the Indemnification
Agreement or 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
Company and each Originator of, or compliance by the Company
and each Originator with, this Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement or, in the case
of the Company, the Pricing Agreement, the Indemnification
Agreement or 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 by TMS Mortgage Inc. of
each Mortgage Note and Mortgage secured by real property
located in New Jersey as and in the manner contemplated by
the Pooling and Servicing Agreement is sufficient fully to
transfer to the Trustee (or, with respect to the Pool III
Home Improvement Loans, the Co-Trustee) for the benefit of
the Certificateholders all right, title and interest of TMS
Mortgage Inc. in and to each such Loan including, without
limitation, the right to enforce each such Loan in
accordance with its terms to the extent enforceable by TMS
Mortgage Inc. at the time of such delivery.
(iii) The favorable opinion, dated as of Closing Time, of
Xxxxx Xxxx, counsel for MBIA, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(A) MBIA is a stock insurance
corporation, duly incorporated and validly existing under
the laws of the State of New York. MBIA is validly licensed
and authorized to issue the MBIA Policies and perform its
obligations under the MBIA Policies in accordance with the
terms thereof, under the laws of the State of New York.
(B) The execution and delivery by MBIA
of the MBIA Policies, the Insurance Agreement and the
Indemnification Agreement are within the corporate power of
MBIA and have been authorized by all necessary corporate
action on the part of MBIA; the MBIA Policies have been duly
executed and are the valid and binding obligations of MBIA
enforceable in accordance with its terms, except that the
enforcement of the MBIA Policies may be limited by laws
relating to bankruptcy, insolvency, reorganization,
moratorium, receivership and other similar laws affecting
creditors' rights generally and by general principles of
equity.
(C) MBIA is authorized to deliver the
Insurance Agreement and the Indemnification Agreement, and
the Insurance Agreement and the Indemnification Agreement
have been duly executed and are the valid and binding
obligations of MBIA enforceable in accordance with their
respective terms except that the enforcement of the
Insurance Agreement and the Indemnification Agreement may be
limited by laws relating to bankruptcy, insolvency,
reorganization, moratorium, receivership and other similar
laws affecting creditors' rights generally and by general
principles of equity and by public policy considerations
relating to indemnification for securities law violations.
(D) No consent, approval, authorization
or order of any state or federal court or govern-mental
agency or body is required on the part of MBIA, the lack of
which would adversely affect the validity or enforceability
of the MBIA Policies; to the extent required by applicable
legal requirements that would adversely affect the validity
or enforceability of the MBIA Policies, the form of the MBIA
Policies has been filed with, and approved by, all
governmental authorities having jurisdiction over MBIA in
connection with such MBIA Policies.
(E) To the extent the MBIA Policies
constitute securities within the meaning of Section 2(l) of
the Securities Act of 1933, as amended (the "Act"), it is a
security that is exempt from the registration requirements
of the Act.
(F) The information set forth under the
caption "MBIA Policies and MBIA" in the Prospectus
Supplement, relating to the offer and sale of the Class A
Certificates, to the Prospectus forming a part of the
Registration Statement on Form S-3 (No. 333-32775) filed by
the Company with the Securities and Exchange Commission and
declared effective on September 11, 1997, insofar as such
statements constitute a description of the MBIA Policies,
accurately summarizes the MBIA Policies.
In rendering this opinion, such counsel may rely, as to matters of
fact, on certificates of responsible officers of the Company, the Trustee, the
Co-Trustee MBIA 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 MBIA.
(iv) The favorable opinion, dated as of Closing Time, of
Xxxxx, Xxxxxx & Xxxxxx, counsel for the Trustee, in form and substance
satisfactory to counsel for the Underwriters.
(v) The favorable opinion, dated as of Closing Time, of
Xxxxxx & Xxxxxxxx, counsel for the Co-Trustee, in form and substance
satisfactory to counsel for the Underwriters.
(vi) The favorable opinion, dated as of the Closing Time, of
Xxxxxx & Xxxxxxxx counsel for the Custodian, in form and substance
satisfactory to counsel for the Underwriters.
(vii) In giving its opinion required by subsection (b)(i) 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, as of 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 Representatives, as
representatives of the Underwriters, by the Company for use in
connection with the offering of the Offered 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
Representatives, as representatives of 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 the financial, numerical,
statistical and quantitative information contained therein, the
information under the heading "The MBIA Policies and MBIA" therein,
and the information in the Exhibits thereto, as to which such counsel
need express no view).
(c) At Closing Time, the Representatives, as representatives of the
Underwriters, shall have received from Stroock & Stroock & Xxxxx LLP, counsel
for the Underwriters, a letter, dated as of Closing Time, authorizing the
Representatives, as representatives of the Underwriters, to rely upon each
opinion delivered by Stroock & Xxxxxxx & Xxxxx LLP to each of Xxxxx'x, Standard
& Poor's and Fitch in connection with the issuance of the Certificates as though
each such opinion was addressed to the Representatives, as representatives of
the Underwriters, 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 Company and the Originators and their subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Underwriters shall have received a certificate signed by one
or more duly authorized officers of the Company and the Originators, 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 Company and the Originators
have 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 before the time of printing of the Prospectus Supplement,
the Representatives, as representatives of the Underwriters, shall have received
from KPMG Peat Marwick a letter dated as of Closing Time and in form and
substance satisfactory to the Representatives, as representatives of the
Underwriters, 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 Company's servicing
portfolio which are included in the Prospectus and which are specified by the
Representatives, as representatives of the Underwriters, and have found such
amounts, percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and the
Originators identified in such letter, (ii) the information contained in the
weighted average life tables contained in the Prospectus under the caption
"Maturity, Prepayment and Yield Considerations" and have found such information
to be in agreement with the corresponding information as computed by KPMG Peat
Marwick and (iii) certain information regarding the Loans and the Files which
are specified by the Representatives, as representatives of the Underwriters,
and contained in the Current Report on Form 8-K described in Section 5(l) hereof
and setting forth the results of such specified procedures.
Notwithstanding the foregoing, if the letter delivered by KPMG Peat
Marwick at Closing Time does not cover the information set forth in subclause
(iii), the Company shall cause KPMG Peat Marwick to deliver to the
Representatives, as representatives of the Underwriters, an additional letter
covering such information within 5 business days of the Closing Time.
(f) At Closing Time, the Representatives, as representatives of the
Underwriters, shall have received from each of the Trustee and the Co-Trustee a
certificate signed by one or more duly authorized officers of the Trustee and
the Co-Trustee, respectively, dated as of Closing Time, as to the due acceptance
of the Pooling and Servicing Agreement by the Trustee and the Co-Trustee and the
due authentication of the Certificates by the Trustee and such other matters as
the Representatives, as representatives of the Underwriters, shall request.
(g) At Closing Time, the Representatives, as representatives of the
Underwriters, shall have received a certificate signed by one or more duly
authorized officers of MBIA, dated as of Closing Time, to the effect that the
information contained under the caption "The MBIA Policies and MBIA" in the
Prospectus and the information incorporated by reference therein is true and
accurate in all material respects and such other matters as the Representatives,
as representatives of the Underwriters, shall request.
(h) At Closing Time, the Representatives, as representatives of the
Underwriters, shall have received a certificate signed by one or more duly
authorized officers of the Company and the Originators, dated as of Closing Time
to the effect that:
(i) the representations and warranties of the Company and
the Originators 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 Company and the Originators have 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 Representative and the
Originators" and "The Loans" and in the Prospectus under the captions
"The Representative and the Originators" and "Lending Programs" 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 Loans
required to be furnished pursuant to the Pooling and Servicing
Agreement is true and correct in all material respects and the Loans
actually being delivered to the Trustee and the Co- Trustee at Closing
Time conform in all material respects to the Pool information set
forth in the Prospectus Supplement;
(v) the copies of the Charter and By-laws of the Company and
the Originators 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 Company or any Originator which
if adversely determined, individually or in the aggregate, would
adversely affect the Company's or such Originator's obligations under
the Pooling and Servicing Agreement, the Indemnification Agreement,
the Insurance Agreement, the Pricing Agreement or this Agreement;
(vii) each person who, as an officer or representative of
the Company or of any Originator, signed (a) this Agreement, (b) the
Pooling and Servicing Agreement, (c) the Certificates issued
thereunder, (d) the Insurance Agreement, (e) the Indemnification
Agreement or (f) 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) a certified true copy of the resolutions of the board
of directors of the Company and the Originators with respect to the
sale of the Offered Certificates subject to this Agreement and the
Pooling and Servicing Agreement, which resolutions have not been
amended and remain in full force and effect;
(ix) all payments received with respect to the Loans after
the Cut-Off Date have been deposited in the Principal and Interest
Account, and are, as of the Closing Date, in the Principal and
Interest Account;
(x) the Company has complied, and has ensured that the
Originators have complied, with all the agreements and satisfied, and
has ensured that the Originators have satisfied, all the conditions on
its, and the Originators', part to be performed or satisfied in
connection with the issuance, sale and delivery of the Loans and the
Certificates;
(xi) all statements contained in the Prospectus with respect
to the Company and the Originators 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;
(xii) each Mortgage assignment will be prepared based on
forms recently utilized by the Company with respect to mortgaged
properties located in the appropriate jurisdiction and used in the
regular course of the Company's business. Based on the Company's
experience with such matters, the Company reasonably believes that
upon execution each such assignment will be in recordable form and
will be sufficient to effect the assignment of the Mortgage to which
it relates as provided in the Pooling and Servicing Agreement; and
(xiii) the weighted average lives of the Offered
Certificates, in each case using the applicable pricing speed and a
weighted average coupon (or, in the case of the Pool II Home Equity
Loans, the weighted average margin) and weighted average maturity
based upon the Loans actually delivered to the Trustee and the
Co-Trustee, will not vary by more than 1/10th of one year from the
number of years set forth below:
CLASS YEARS CLASS YEARS
----- ----- ----- -----
AF-1 0.51 AH-1 0.85
AF-2 1.20 AH-2 2.00
AF-3 2.06 AH-3 3.00
AF-4 3.05 AH-4 5.08
AF-5 4.04 AH-5 9.86
AF-6 5.54 MH-1 7.47
AF-7 10.25 MH-2 7.45
AF-8 5.00 BH 7.37
AF-9 7.93
AV 2.97
(i) At Closing Time, each Class of the Offered Certificates
shall have been rated as follows by Xxxxx'x, Standard & Poor's and Fitch:
RATING
CLASS S&P XXXXX'X FITCH
----- --- ------- -----
AF-1 AAA Aaa --
AF-2 AAA Aaa --
AF-3 AAA Aaa --
AF-4 AAA Aaa --
AF-5 AAA Aaa --
AF-6 AAA Aaa --
AF-7 AAA Aaa --
AF-8 AAA Aaa --
AF-9 AAA Aaa --
AV AAA Aaa --
AH-1 AAA -- AAA
AH-2 AAA -- AAA
AH-3 AAA -- AAA
AH-4 AAA -- AAA
AH-5 AAA -- AAA
MH-1 AA -- AA+
MH-2 A -- A
BH BBB -- BBB
(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
Offered 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 Offered
Certificates as herein contemplated shall be satisfactory in form and substance
to the Representatives, as representatives of the Underwriters, and counsel for
the Underwriters.
(k) On or before the Closing Time the Company and the Originators
shall have delivered to the Trustee (or, with respect to the Pool III Home
Improvement Loans, the Co- Trustee), to hold in trust for the benefit of the
holders of the Certificates, Pool I and Pool II Home Equity Loans and Pool III
Home Improvement Loans (as defined in the Prospectus) with aggregate outstanding
principal balances as of the Cut-Off Date of at least $459,000,000, $423,000,000
and $138,000,000, respectively. The Company and the Originators shall,
immediately following the sale of the Offered Certificates, cause to be
deposited with the Trustee, for deposit in the Pre-Funding Account (as defined
in the Prospectus Supplement), cash in an amount equal to the sum of (A) the
excess of (i) the aggregate initial principal balance of the Class AF-1, Class
AF-2, Class AF-3, Class AF-4, Class AF-5, Class AF-6, Class AF-7, Class AF-8 and
Class AF-9 (i.e, $570,000,000) over (ii) the aggregate discounted outstanding
principal balances as of the Cut-Off Date of the Pool I Home Equity Loans
actually delivered to the Trustee, (B) the excess of (i) the aggregate initial
principal balance of the Class AV Certificate (I.E., $530,000,000) over (ii) the
aggregate outstanding principal balances as of the Cut-Off Date of the Pool II
Home Equity Loans actually delivered to the Trustee, and (C) the excess of (i)
the aggregate initial principal balance of the Class AH-1, Class AH-2, Class
AH-3, Class AH-4, Class AH-5, Class MH-1, Class MH-2 and Class BH Certificates
(I.E., $165,000,000) over (ii) the aggregate outstanding principal balances as
of the Cut-Off Date of the Pool III Home Improvement Loans actually delivered to
the Trustee and the Co-Trustee.
(l) On or before the Closing Time the Company shall have delivered to
the Representatives a Current Report on Form 8-K containing a detailed
description of the Loans actually being delivered to the Trustee and the
Co-Trustee at Closing Time, in form and substance satisfactory to the
Representatives.
(m) On or before the Closing Time the Company shall have delivered to
the Representative confirmation from the Federal Housing Administration (the
"FHA") that the FHA insurance reserves relating to the FHA Loans have been or
will be transferred to the Co-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 Representatives, as representatives to the Underwriters, by notice to the
Company 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 Originators jointly and severally agree to
indemnify and hold harmless each of the Underwriters and each person, if any,
who controls each 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 the Company; 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 such 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 any Underwriter (or person controlling such Underwriter) from
whom the person suffering any such loss, claim, damage or liability purchased
the Offered 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 Offered 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.
(b) Each Underwriter agrees to indemnify and hold harmless the Company
and the Originators, their directors, each of the Company's and Originator's
officers who signed the Registration Statement, and each person, if any, who
controls the Company 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 third paragraph on the
third page which is located on the inside cover (discussing the risk of a lack
of secondary trading) of the Prospectus, (y) the second paragraph under the
heading "Underwriting" in the Prospectus Supplement (or any amendment or
supplement thereto) 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.
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
Originators 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 the Company and the Originators jointly and severally, on the one
hand, and the Underwriters, on the other hand, as incurred, in such proportions
that each Underwriter is responsible for that portion represented by the
difference between the purchase price paid by such Underwriter allocated to the
principal amount of Offered Certificates set forth next to each Underwriter's
name on Annex B hereto and the price at which such Underwriter sold such Offered
Certificates to the public (or, with respect to Computational Materials
furnished by an 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 excess of the
principal amount of Offered Certificates set forth next to such Underwriter's
name on Annex B hereto over the difference between the purchase price paid by
such Underwriter for such Offered Certificates and the price at which such
Offered Certificates were sold to the public), and the Company and the
Originators 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, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered Certificates
set forth next to the name of such Underwriter on Annex B hereto were offered to
the public exceeds the amount of any damages such 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 any
Underwriter within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Underwriter and each respective director of the
Company and the Originators, each officer of the Company and the Originators who
signed the Registration Statement, and each respective person, if any, who
controls the Company and the Originators within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company and the
Originators.
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 Originators submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any of the Underwriters or any controlling person thereof, or by
or on behalf of the Company and the Originators, and shall survive delivery of
the Offered Certificates to the Underwriter.
Section 9. TERMINATION OF AGREEMENT.
(a) The Representatives, as representatives of the Underwriters, may
terminate this Agreement, by notice to the Company and the Originators, 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 and the Originators considered as one
entity or MBIA which, in the reasonable judgment of the Representatives, as
representatives of the Underwriters, materially impairs the investment quality
of any of the Offered Certificates; (ii) if there has occurred any downgrading
in the rating of the debt securities of MBIA by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the 1933 Act) which, in the reasonable judgment of the Representatives, as
representatives of the Underwriters, materially impairs the investment quality
or marketability of any of the Offered Certificates or if any debt security of
MBIA 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; or (v) 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 judgment of the Representatives,
as representatives of the Underwriter, 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
Offered 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. DEFAULT BY ONE OF THE UNDERWRITERS. If any of the
Underwriters shall fail at Closing Time to purchase the Offered Certificates
which it is obligated to purchase hereunder (the "Defaulted Certificates"), the
remaining Underwriters (the "Non-Defaulting Underwriters") shall have the right,
but not the obligation, within one (1) Business Day thereafter, to make
arrangements to purchase all, but not less than all, of the Defaulted
Certificates upon the terms herein set forth; if, however, the Non-Defaulting
Underwriters shall have not completed such arrangements within such one (1)
Business Day period, then this Agreement shall terminate without liability on
the part of the Non-Defaulting Underwriters.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Non-Defaulting Underwriters or the
Company shall have the right to postpone Closing Time for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements.
Section 11. 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 Offered Certificates, 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 its agreement set forth in Section 11(b) to
file the Computational Materials by the time specified therein.
(vi) 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 12. 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
Underwriters shall be directed to Prudential, as representative of the
Underwriters, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department (Fax: 000-000-0000) and Lehman, as representative of the
Underwriters, Three World Financial Center, New York, New York 10285, Attention:
Asset Backed Securities (Fax: 000-000-0000); and notices to the Company or any
Originator shall be directed to it at 0000 X Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx
00000, Attention: Executive Vice President (Fax: 000-000-0000).
Section 13. PARTIES. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Underwriters, the Company,
the Originators 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, 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 Underwriters, the Company, the Originators 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 Offered Certificates from the
Underwriters shall be deemed to be a successor by reason merely of such
purchase. The Company and the Originators shall be jointly and severally liable
for all obligations incurred under this Agreement and the Pricing Agreement.
Section 14. 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 15. 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 the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among each of the Underwriters and the Company in accordance with its terms.
Very truly yours,
THE MONEY STORE INC.
By:/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
THE ORIGINATORS LISTED ON
ANNEX A HERETO
By:/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
CONFIRMED AND ACCEPTED, as of
the date first above written:
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
Acting on behalf of themselves
and as the representative of
the Underwriters of the Pool I
and Pool II Certificates
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Acting on behalf of themselves
and as the representative of
the Underwriters of the Pool III
Certificates
ANNEX A
THE ORIGINATORS
The Money Store/Minnesota Inc.
The Money Store/D.C. Inc.
The Money Store/Kentucky Inc.
The Money Store Home Equity Corp.
TMS Mortgage Inc.
ANNEX B
First
Union
Capital
Markets, a
Division
First of
Xxxxxxx Bear Chicago Wheat
Prudential Xxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxx Xxxxxxx Capital First
Securities Xxxxxxxx Xxxxxxx & Co. Xxxxxx & Xxxxx Brothers &Co., Markets, Securities
Incorporated Inc. Incorporated Incorporated Inc. Inc. Inc. Inc. Total
-----------------------------------------------------------------------------------------------------------------------------------
Pool I
Certificates
Class AF-1 $48,000,000 $0 $48,000,000 $0 $0 $23,000,000 $12,000,000 $0 $131,000,000
Class AF-2 $24,000,000 $0 $24,000,000 $0 $0 $12,000,000 $6,000,000 $0 $66,000,000
Class AF-3 $44,000,000 $0 $44,000,000 $0 $0 $21,000,000 $11,000,000 $0 $120,000,000
Class AF-4 $17,000,000 $0 $17,000,000 $0 $0 $7,500,000 $3,500,000 $0 $45,000,000
Class AF-5 $22,000,000 $0 $22,000,000 $0 $0 $10,000,000 $5,000,000 $0 $59,000,000
Class AF-6 $16,000,000 $0 $16,000,000 $0 $0 $7,500,000 $3,500,000 $0 $43,000,000
Class AF-7 $18,000,000 $0 $18,000,000 $0 $0 $8,500,000 $4,500,000 $0 $49,000,000
Class AF-8 $11,000,000 $0 $11,000,000 $0 $0 $5,500,000 $2,500,000 $0 $30,000,000
Class AF-9 $10,000,000 $0 $10,000,000 $0 $0 $5,000,000 $2,000,000 $0 $27,000,000
POOL II
CERTIFICATES
Class AV $215,000,000 $0 $45,000,000 $125,000,000 $125,000,000 $0 $0 $20,000,000 $530,000,000
POOL III
CERTIFICATES
Class AH-1 $0 $55,523,000 $0 $0 $0 $0 $0 $0 $55,523,000
Class AH-2 $0 $12,685,000 $0 $0 $0 $0 $0 $0 $12,685,000
Class AH-3 $0 $29,307,000 $0 $0 $0 $0 $0 $0 $29,307,000
Class AH-4 $0 $10,406,000 $0 $0 $0 $0 $0 $0 $10,406,000
Class AH-5 $0 $18,510,000 $0 $0 $0 $0 $0 $0 $18,510,000
Class MH-1 $0 $9,281,000 $0 $0 $0 $0 $0 $3,094,000 $12,375,000
Class MH-2 $0 $9,436,000 $0 $0 $0 $0 $0 $3,145,000 $12,581,000
Class BH $0 $10,210,000 $0 $0 $0 $0 $0 $3,403,000 $13,613,000
Total $425,000,000 $155,358,000 $255,000,000 $125,000,000 $125,000,000 $100,000,000 $50,000,000 $29,642,000 $1,265,000,000
