Exhibit 4.4
EXECUTION COPY
INTEREST RATE SERVICES AGREEMENT
THIS INTEREST RATE SERVICES AGREEMENT (the "Agreement"), dated as of
June 29, 1999, is being entered into between HSBC Bank USA, as Indenture Trustee
under the Indenture, its successors in interest and any successor trustee under
the Indenture, as hereinafter defined and described, and First Union Capital
Markets Corp. (the "Remarketing Agent") acting not in its individual capacity
but solely as agent for The Money Store Inc. (the "Representative");
WITNESSETH:
The Representative proposes to cause the Indenture Trustee to
authenticate and deliver up to $589,339,000 aggregate principal amount of The
Money Store Business Loan Backed Notes, Series 1999-1 (the "Notes") to be issued
by The Money Store Business Loan Backed Trust 1999-1 (the "Trust"). The Notes
will be issued under the Indenture (the "Indenture"), which term includes all
Exhibits, Schedules and Annexes thereto), dated as of May 31, 1999, by and
between the Indenture Trustee and the Trust. After the applicable initial
Interest Period, the Class Remittance Rate for the Class AS-3 Notes (the
"Auction Rate Notes") shall be based on the Auction Procedures set forth in
Schedule I to the Indenture. The Representative desires to appoint First Union
Capital Markets Corp. ("First Union Capital Markets") as the Remarketing Agent
under this Agreement and First Union Capital Markets desires to accept such
appointment.
The Indenture Trustee is entering into this Interest Rate Services
Agreement at the direction of the Trust pursuant to the terms of the Indenture.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. All terms not otherwise defined in this
Agreement shall have the meanings set forth in the Indenture, including Schedule
I thereto.
ARTICLE II
APPOINTMENT OF AGENT
SECTION 2.01. FIRST UNION CAPITAL MARKETS APPOINTMENT AND ACCEPTANCE.
The Representative hereby appoints First Union Capital Markets as the
Remarketing Agent under this Interest Rate Services Agreement and First Union
Capital Markets hereby accepts such appointment. For purposes of this Agreement
the office of First Union Capital Markets shall be One First Union Center, 000
X. Xxxxxxx Xx., XX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 unless otherwise
indicated in writing by First Union Capital Markets.
SECTION 2.02. PERFORMANCE BY OTHER PARTIES. The Remarketing Agent
shall be obligated to perform hereunder only upon performance in all material
respects by the parties to this Agreement of their duties and responsibilities
hereunder and under the Indenture.
SECTION 2.03. NO UNDERWRITING. The Remarketing Agent shall not, in
fulfilling its obligations hereunder, be required to act as an underwriter for
Auction Rate Notes and is in no way obligated, directly or indirectly, to
advance its own funds to purchase Auction Rate Notes available for purchase in
the secondary market. The duties of the Remarketing Agent shall be solely as
provided herein, and no implied covenants or obligations on the part of the
Remarketing Agent shall be read into this Agreement.
ARTICLE III
DUTIES OF REMARKETING AGENT
SECTION 3.01. DUTIES OF REMARKETING AGENT. The Remarketing Agent
hereby agrees to undertake the duties specified as duties of the Remarketing
Agent set forth in the Indenture in connection with the determination from time
to time of the interest rates payable on the Auction Rate Notes and giving
notice and providing information to the Indenture Trustee as specified in the
Indenture. In performing such tasks, the Remarketing Agent shall be acting as an
independent contractor and not as agent for the Representative or owners of the
Auction Rate Notes. The Remarketing Agent may appoint third parties to assist it
in performing its functions hereunder.
SECTION 3.02. DETERMINATION OF AUCTION RATES FOR NOTES. The Class
Remittance Rate on the Auction Rate Notes for each Auction Period shall be the
lesser of (i) the Maximum Auction Rate in effect for such Auction Period and
(ii) the rate established by the Remarketing Agent for such Auction Rate Notes
no later than 1:00 p.m., New York City time, on the Auction Date immediately
preceding each Interest Period for the Auction Rate Notes as being the minimum
rate of interest that would be necessary, in the best professional judgment of
the Remarketing Agent, taking into account prevailing market conditions, to sell
all of the Auction Rate Notes for the next succeeding Auction Period on such
date in the secondary market at a price equal to the principal amount thereof
for settlement on the next succeeding Remittance Date for the Auction Rate
Notes.
In the process of taking into account prevailing market conditions,
the Remarketing Agent shall take, among other actions it may deem appropriate,
the following actions. Not more than one Business Day before the Auction Date,
the Remarketing Agent shall make available to all interested parties an
estimated range of interest rates for the Auction Rate Notes for which the
interest rate is being determined during the next ensuing Auction Period (the
"Estimated Range of Interest Rate"). The Remarketing Agent shall then inquire of
owners of such Auction Rate Notes that communicate with the Remarketing Agent as
to whether or not such owners choose to continue to hold their Auction Rate
Notes at the Estimated Range of Interest Rate or, if not, as to the specific
interest rate, if any, at which such owners would choose to continue to hold
such Auction Rate Notes. The Remarketing Agent shall thereupon establish the
Auction Rate for the Auction Rate Notes for the next ensuing Auction Period or
Periods and communicate the same to the parties and in the manner required by
the Indenture.
ARTICLE IV
RESIGNATION OR DISCHARGE OF THE REMARKETING AGENT;
REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION OF THE REMARKETING AGENT
SECTION 4.01. RESIGNATION OR DISCHARGE OF REMARKETING AGENT. (a) The
Remarketing Agent may at any time resign and be discharged of the duties and
obligations created by this Agreement by giving at least sixty (60) days'
written notice to the Representative and the Indenture Trustee. The Remarketing
Agent may be removed upon at least sixty (60) days' written notice to the
Remarketing Agent, at the direction of the Representative, by an instrument
signed by the Representative and filed with the Remarketing Agent and the
Indenture Trustee. Notwithstanding the foregoing, no resignation or removal of
the Remarketing Agent shall be effective unless and until a successor shall have
been appointed; provided that such resignation by the Remarketing Agent shall be
effective upon such sixty (60) days' written notice whether or not a successor
has been appointed if and when the Remarketing Agent reasonably determines that
any one of the following shall obtain: (i) the Representative is not diligently
pursuing the appointment of a successor Remarketing Agent at the level of
compensation then generally paid in the marketplace for the services to be
performed by the successor Remarketing Agent, (ii) events have occurred which
materially adversely affect the Remarketing Agent's ability to fulfill its
duties as Remarketing Agent, including the elimination of the Remarketing
Agent's capacity to fulfill the duties of the Remarketing Agent or a
determination by counsel to the Remarketing Agent that continuation of
performance as such hereunder would be contrary to law or would expose the
Remarketing Agent to material risk of illegality, (iii) the Indenture has been
amended, modified or terminated in such manner as would affect the Remarketing
Agent or its duties without the consent of the Remarketing Agent, or (iv) any
condition to performance by the Remarketing Agent hereunder shall not be
satisfied.
(b) In the event of the resignation or removal of the Remarketing
Agent, the Remarketing Agent shall pay over, assign and deliver any Auction Rate
Notes held by it in such capacity to its successor. In the event that the
Representative shall fail to appoint a Remarketing Agent hereunder, the
Indenture Trustee may do so, subject to the criteria set forth in the Indenture.
SECTION 4.02. REPRESENTATIONS AND WARRANTIES OF THE PARTIES. (a) The
Representative represents and warrants that (i) the Representative is duly
incorporated, validly existing and in good standing as a corporation under the
laws of the State of New Jersey; (ii) the Representative has all requisite
corporate power to execute and deliver, and has by proper corporate action duly
authorized the execution and delivery of this Agreement; and (iii) this
Agreement is the legal, valid and binding obligation of the Representative
enforceable in accordance with its terms, except that enforcement 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.
(b) The Remarketing Agent represents and warrants that (i) the
Remarketing Agent is duly incorporated, validly existing and in good standing as
a corporation under the laws of the Commonwealth of Virginia; (ii) the
Remarketing Agent has all requisite power to execute and deliver, and has by
proper action duly authorized the execution and delivery of this Agreement;
(iii) the Remarketing Agent is a member of the National Association of
Securities Dealers, Inc.; and (iv) this Agreement constitutes the legal, valid
and binding obligation of the Remarketing Agent enforceable in accordance with
its terms, except that enforcement 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.
SECTION 4.03. INDEMNIFICATION OF REMARKETING AGENT. The Representative
agrees to indemnify and hold the Remarketing Agent harmless from any and all
liability, loss, damages, costs and expenses of any nature (including, without
limitation, reasonable counsel fees and expenses) arising out of or in
connection with the Remarketing Agent's duties or those of the Remarketing
Agent's employees or agents (each, an "Indemnified Party") arising from its
performance under this Agreement or the Indenture, except for liabilities,
losses, damages, costs, expenses and fees arising out of the bad faith, gross
negligence or willful misconduct of the Remarketing Agent or any of its
employees or agents. The Representative agrees that neither the Remarketing
Agent nor any of its employees or agents shall be liable for any action or
omission to act, taken or made pursuant to this Agreement, except for gross
negligence, bad faith or willful misconduct. The foregoing provisions of this
Section 4.03 include, without limitation, any action taken or omitted within the
scope of this Agreement or the Indenture or any such action taken or omitted
upon telephonic or written instructions received or reasonably believed to have
been received from the Representative or the Indenture Trustee.
Promptly after receipt by an Indemnified Party of notice of the
commencement of any action in respect to which indemnification may be sought
against the Representative under Section 4.03 hereof, such Indemnified Party
shall promptly notify the Representative in writing; but the omission to so
notify the Representative shall neither relieve the Representative from any
liability which the Representative may have to any Indemnified Party otherwise
than under this Section 4.03 nor affect any rights that the Representative may
have otherwise than this Section 4.03 nor affect any rights that the
Representative may have otherwise than under this Section 4.03 to participate in
and/or assume the defense of any action brought against any Indemnified Party.
In the event such action is brought against any Indemnified Party, and such
Indemnified Party notifies the Representative of the commencement thereof, the
Representative shall be entitled to participate in, and, to the extent that the
Representative chooses so to do, to assume the defense thereof (including,
without limitation, the employment of counsel reasonably satisfactory to such
Indemnified Party), and the Representative shall assume the payment of all fees
and expenses relating to such defense, and shall have the right to negotiate and
consent to any settlement thereof reasonably satisfactory to such Indemnified
Party. Any one or more of the Indemnified Parties shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but after notice from the Representative to such Indemnified Party of the
Representative's election to assume the defense thereof, the fees and expense of
such separate counsel shall be at the expense of such Indemnified Party unless
the employment of such counsel has been specifically authorized in writing by
the Representative or unless a conflict of interest reasonably necessitates
separate counsel. The Representative shall not be liable for any settlement of
any such action effected without its consent, but if settled with the consent of
the Representative or if there be a final judgment for the plaintiff in any such
action as to which the Representative has received notice in writing as
hereinabove required, the Representative agrees to indemnify and hold harmless
the Indemnified Party from and against any loss or liability by reason of such
settlement or judgment.
In order to provide for just and equitable contribution in
circumstances in which the indemnity provided for in this Section 4.03 is held
to be unavailable for the Remarketing Agent from the Representative with respect
to matters covered by this Section 4.03 for which the Remarketing Agent is
adjudged to be contributorily responsible, the Representative on the one hand
and the Remarketing Agent on the other, with respect to such matters, shall
contribute to the aggregate losses and expenses, to which the Representative on
the one hand and the Remarketing Agent on the other may be subject in such
proportion such that the Remarketing Agent is responsible for that portion
represented by the percentage that the Remarketing Agent Fee payable to the
Remarketing Agent hereunder with respect to the distribution in question bears
to the aggregate offering price of the Auction Rate Notes, and the
Representative shall be responsible for the balance. In no event, however, shall
the Remarketing Agent be responsible for an amount in excess of such Remarketing
Agent Fee and in no event shall any person guilty of fraudulent
misrepresentation (within the meaning of the Securities Act) be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The allocation of contributions provided by this Section 4.03
also shall extend, without limitation, to any and all expenses whatsoever
reasonably incurred in connection with investigating, preparing for, or
defending against, or providing evidence, producing documents, or taking any
other reasonable action in respect of, any such loss, damage, expense, liability
or claim (or action in respect thereof), whether or not resulting in any
liability, and shall include any loss to the extent of the aggregate amount paid
in settlement of any litigation, commenced or threatened, or of any claim
whatsoever as set forth herein if such settlement is effected with the written
consent of the Representative. For purposes of this Section 4.03, each officer,
director, employee, agent, or attorney of the Remarketing Agent and each person,
if any, who controls the Remarketing Agent within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, or within the meaning of
any amendment of said Acts, shall, under the same circumstances, have the same
rights to contribution from the Representative as does the Remarketing Agent
hereunder. Within a reasonable time after a party entitled to contribution under
this Section 4.03 shall have been served with the summons or other first legal
process or shall have received written notice of the threat of a claim in
respect of which contribution may be sought hereunder, such person shall, if a
claim for contribution is to be made against the Representative or the
Remarketing Agent under this Section 4.03, notify such party, in writing, of the
commencement thereof, PROVIDED, HOWEVER, that any notice given by the
Remarketing Agent for the purposes of, and as provided in, this Section 4.03
shall constitute notice for purposes of this Section 4.03.
The indemnity provided by this Section 4.03 shall be in addition to
any other liability that the Representative may otherwise have hereunder, at
common law, or otherwise. The indemnity provided by this Section 4.03 is
provided solely for the benefit of each of the Indemnified Parties and their
respective successors, assigns, and legal representatives, and no other person
shall acquire or have any right under or by virtue of such provisions of this
Agreement. The indemnification provided by this Section 4.03 shall survive
termination of this Agreement and discharge or resignation of the Remarketing
Agent.
ARTICLE V
COMPENSATION OF REMARKETING AGENT
SECTION 5.01. In consideration of the services to be performed by the
Remarketing Agent under this Agreement, the Remarketing Agent shall be entitled
to a fee (the "Remarketing Agent Fee") at a per annum rate equal to the product
of (i) the then outstanding Class Principal Balance of the Auction Rate Notes
and (ii) 0.25%.
The Remarketing Agent shall be entitled to receive the Remarketing
Agent Fee pursuant to Section 7.08(d)(i) of the Sale and Servicing Agreement or,
if such fee is not paid when due, from the Representative.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. (a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
(b) The Remarketing Agent's duties and obligations hereunder shall be
governed solely by the terms of this Agreement and the Indenture, anything in
any other document to the contrary notwithstanding. Any conflict between the
terms of the Indenture or any other agreement and this Agreement shall be
resolved in favor of this Agreement.
(c) This Agreement may be amended only by a written agreement signed
by the parties hereto.
(d) This Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall constitute an original, but such
counterparts together shall constitute but one and the same Agreement.
(e) The captions or headings in this Agreement are for convenience of
reference only and in no way define, limit or describe the scope or intent of
any provisions or sections hereof.
(f) Any notices, requests or other communications given or made
hereunder or pursuant hereto shall be in writing (unless otherwise specified
herein) and shall be deemed to have been validly given or made when delivered
(via telecopy or by hand) or mailed, registered or certified mail, return
receipt requested and postage prepaid, addressed as follows:
(i) if to the Indenture Trustee, to HSBC Bank USA, 000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or telecopy (212)
658-6425), Attention: Xxxxx Barstock; Corporate Trust Department
(telephone (000) 000-0000);
(ii) if to the Representative, The Money Store Inc.,
000 Xxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxxxxx 00000 (or telecopy
(000) 000-0000), Attention: Managing Attorney (telephone (916)
617-2699); and
(iii) if to the Remarketing Agent, to First Union
Capital Markets Corp., One First Union Center, 000 X. Xxxxxxx
Xx., XX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 (or telecopy
(000) 000-0000), Attention: Xxxxx XxXxxxx (telephone (704)
383-7727).
(g) In the event any one or more of the provisions of this Agreement
shall for any reason be held to be illegal or invalid, such illegality or
invalidity shall not affect any other provisions of the Agreement, and this
Agreement shall be construed and enforced as if such illegal or invalid
provisions had not been contained herein.
(h) Neither the Representative nor the Indenture Trustee shall amend
Schedule I to the Indenture without the written consent of the Remarketing
Agent.
(i) Unless terminated earlier as herein provided, the term of this
Agreement shall be equal to the term of the Auction Rate Notes, as the same may
be shortened by retirement thereof before maturity.
(j) Unless otherwise specifically provided herein, all times specified
herein shall be New York City time.
(k) The Remarketing Agent may become the owner of any of the Auction
Rate Notes with the same rights it would have if it were not acting as
Remarketing Agent hereunder.
IN WITNESS WHEREOF, the Representative and the Remarketing Agent have
each caused this Interest Rate Services Agreement to be executed in their
respective corporate names by their duly authorized officers or signatories as
of the date first above written.
HSBC BANK USA, not in its individual
capacity but solely as Indenture Trustee
By /s/ Xxxxx Barstock
----------------------------------
Name: Xxxxx Barstock
Title: Assistant Vice President
FIRST UNION CAPITAL MARKETS CORP.
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
The Representative hereby accepts
its obligations hereunder, including
those pursuant to Sections 2.01, 4.02,
4.03, 5.01 and 6.01(h) hereof.
THE MONEY STORE INC.
By /s/ Xxxxxx Xxxx
-----------------------------------
Name: Xxxxxx Xxxx
Title: Senior Vice President/CFO
