Exhibit 1.1
THE MONEY STORE INC.
TMS AUTO HOLDINGS, INC.
The Money Store Auto Trust 1997-3
$31,750,000 Class A-1 5.69% Asset Backed Notes
$64,550,000 Class A-2 6.115% Asset Backed Notes
$38,700,000 Class A-3 6.30% Asset Backed Notes
UNDERWRITING AGREEMENT
September 23, 1997
XXXXX XXXXXX INC.
as Representative (the "Representative")
of the several Underwriters named
herein
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Money Store Inc., a New Jersey corporation ("TMSI") and TMS Auto
Holdings, Inc., a Delaware corporation (the "Seller") propose to cause THE MONEY
STORE AUTO TRUST 1997-3 (the "Trust") to issue and sell $31,750,000 principal
amount of its Class A-1 5.69% Asset Backed Notes (the "Class A-1 Notes"),
$64,550,000 principal amount of its Class A-2 Notes (the "Class A-2 Notes") and
$38,750,000 principal amount of its Class A-3 6.30% Asset Backed Notes (the
"Class A-3 Notes" and, together with the Class A-1 Notes and the Class A-2
Notes, the "Notes") to the several underwriters named in Schedule I attached
hereto (the "Underwriters"). The assets of the Trust include, among other
things, a pool of non-prime receivables generated pursuant to motor vehicle
retail installment sale contracts (the "Initial Receivables") acquired by the
Seller pursuant to a purchase agreement dated as of August 31, 1997 (the
"Purchase Agreement") between the Seller and TMS Auto Finance, Inc., all monies
received under the Initial Receivables after, with respect to each Initial
Receivable, the later of (x) August 31, 1997 and (y) the date of its origination
(the "Initial Cutoff Date"), additional receivables generated pursuant to motor
vehicle retail installment sale contracts (the "Subsequent Receivables," and
together with the Initial Receivables, the "Receivables") to be conveyed to the
Trust subsequent to the date of issuance of the Notes and all monies received
under the Subsequent Receivables after their respective subsequent cutoff dates
(each, a "Subsequent Cutoff Date"), an assignment of the security interests in
the vehicles financed thereby, certain bank accounts and the proceeds thereof, a
note guaranty insurance policy issued by MBIA Insurance Corporation (the
"Insurer") to the Indenture Trustee (as defined below) for the benefit of the
Noteholders (the "Note Policy"), and certain other property and the proceeds
thereof to be conveyed to the Trust pursuant to the Sale and Servicing Agreement
to be dated as of August 31, 1997 (the "Sale and Servicing Agreement") among the
Trust, the Seller, TMSI and TMS Auto Finance Inc., as servicer (the "Servicer").
Pursuant to the Sale and Servicing Agreement, the Seller will sell the
Receivables to the Trust and the Servicer will service the Receivables on behalf
of the Trust. In addition, pursuant to the Sale and Servicing Agreement, the
Servicer will agree to perform certain administrative tasks imposed on the Trust
under the Indenture. The Notes will be issued pursuant to the Indenture to be
dated as of August 31, 1997 (as amended and supplemented from time to time, the
"Indenture"), between the Trust and The Chase Manhattan Bank, a New York banking
corporation (the "Indenture Trustee" and in its capacity as collateral agent,
the "Indenture Collateral Agent"). The Trust also will issue one or more
certificates representing the Ownership interest in the Trust (the
"Certificates"). The Note Policy will be issued pursuant to the Insurance
Agreement dated as of August 31, 1997 by and among the Insurer, TMSI, the
Seller, the Servicer, the Trust, the Indenture Trustee and Bankers Trust
(Delaware), as owner trustee (the "Owner Trustee"). In connection with the
transactions contemplated hereby, the Representative, the Insurer and TMSI will
enter into an Indemnification Agreement dated as of September 29, 1997 (the
"Indemnification Agreement").
Prior to the delivery of the Notes by the Seller, and the public offering
thereof by the Underwriters, the Representative, the Seller and TMSI shall enter
into an agreement substantially in the form of Exhibit A hereto (the "Pricing
Agreement"), which shall specify such applicable information as is indicated in,
and be in substantially the form of, Exhibit A hereto. The offering of the Notes
will be governed by this Agreement, as supplemented by the Pricing Agreement.
From and after the date of the execution and delivery of the Pricing Agreement,
this Agreement shall be deemed to incorporate the Pricing Agreement. Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in the Sale and Servicing Agreement or, if not defined therein,
in the Indenture.
The Seller and TMSI understand that the Underwriters propose to make a
public offering of the Notes as soon as the Underwriters deem advisable after
the Pricing Agreement has been executed and delivered.
Section 1. REPRESENTATIONS AND WARRANTIES OF TMSI AND THE SELLER.
(a) TMSI and the Seller represent and warrant to each of the Underwriters
as of the date hereof and, if the Pricing Agreement is executed on a date other
than the date hereof, as of the date of the Pricing Agreement (such latter date
being hereinafter referred to as the "Representation Date") as follows:
(i) TMSI and the Seller have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form
S-3 (No. 333-14075) including a prospectus, and such amendments thereto
as may have been required to the date hereof, relating to the Notes 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 Notes constituting a part thereof as from time to time
amended or supplemented (including any prospectus supplement (the
"Prospectus Supplement") filed with the Commission pursuant to Rule 424
of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations") and any information incorporated therein by
reference are respectively referred to herein as the "Registration
Statement" and the "Prospectus." The conditions of Rule 415 under the
1933 Act have been satisfied with respect to TMSI, the Seller and the
Registration Statement.
(ii) At the time the Registration Statement became
effective and at the Representation Date, the Registration Statement
complied and will comply in all material respects with the requirements
of the 1933 Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the 1933 Act Regulations, and did not and
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus, at the
Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by TMSI and the
Seller for use in connection with the offering of the Notes which
differs from the Prospectus on file at the Commission at the time the
Registration Statement became effective, in which case at the time it
is first provided to the Underwriters for such use) and at Closing Time
referred to in Section 2 hereof, will not include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to TMSI and the Seller in writing by any Underwriter through
the Representative expressly for use in the Registration Statement or
Prospectus and provided further, that the Company makes no
representations or warranties as to any information in any
Computational Materials (as defined in Section 11 below) provided by
any Underwriter to the Company pursuant to Section 11, except to the
extent of any errors in the Computational Materials that are caused by
errors in the pool information provided by the Company to the
applicable Underwriter. The conditions to the use by TMSI and the
Seller of a registration statement on Form S-3 under the 1933 Act, as
set forth in the General Instructions to Form S-3, have been satisfied
with respect to the Registration Statement and the Prospectus.
(iii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Seller, the Servicer, TMSI and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, which would have a material adverse
effect on the ability of each of TMSI, the Seller and the Servicer to
perform its obligations under the Basic Documents (as defined below) to
which it is a party and (B) there have been no transactions entered
into by the Seller, the Servicer, TMSI or any of its subsidiaries,
other than those in the ordinary course of business, which would have a
material adverse effect on the ability of the Seller, the Servicer or
TMSI to perform its obligations under this Agreement, the Pricing
Agreement, the Sale and Servicing Agreement, the Trust Agreement, the
Purchase Agreement, the Indemnification Agreement and the Insurance
Agreement (this Agreement, the Pricing Agreement, the Sale and
Servicing Agreement, the Trust Agreement, the Purchase Agreement, the
Indemnification Agreement and the Insurance Agreement being herein
referred to, collectively, as the "Basic Documents") to which it is a
party.
(iv) Each of TMSI, the Seller and the Servicer has been
duly organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation with all
requisite power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter
into and perform its obligations under the Basic Documents to which it
is a party; and each is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on, (A)
the ability of any of TMSI, the Seller or the Servicer to perform its
obligations under the Basic Documents to which it is a party, or (B)
the business, properties, financial position, operations or results of
operations of TMSI, the Seller or the Servicer.
(v) Any person who signed this Agreement on behalf of TMSI
or the Seller was, as of the time of such signing and delivery, and is
now duly elected or appointed, qualified and acting, and the Agreement,
as so executed, is duly and validly authorized, executed, and
constitutes the valid, legal and binding agreement of each of TMSI and
the Seller, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(vi) Each Basic Document to which it is a party has been
duly and validly authorized by TMSI, the Seller and the Servicer and,
when executed and delivered by TMSI, the Seller and the Servicer, as
the case may be, and duly and validly authorized, executed and
delivered by the other parties thereto, will constitute, the valid and
binding agreement of TMSI, the Seller and the Servicer, as the case may
be, enforceable in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law; and such
Basic Documents and the Policies conform in all material respects to
the statements relating thereto contained in the Prospectus.
(vii) The Notes, when duly and validly executed by the
Indenture Trustee, authenticated and delivered in accordance with the
Indenture, and delivered and paid for pursuant hereto will be validly
issued and outstanding and entitled to the benefits of the Indenture.
The Notes conform in all material respects to all statements relating
thereto contained in the Prospectus.
(viii) Neither the grant of the security interest in the
Collateral to the Indenture Collateral Agent pursuant to the Indenture,
nor the issuance or delivery of the Notes, nor the consummation of any
other of the transactions herein contemplated or in any other Basic
Document, nor the execution and delivery by each of TMSI, the Seller
and the Servicer of the Basic Documents to which it is a party, nor the
fulfillment of the terms of the Notes or each such Basic Document will
result in the breach of any term or provision of the charter or by-laws
of TMSI, the Seller or the Servicer, and none of TMSI, the Seller and
the Servicer is in breach or violation of or in default (nor has an
event occurred which with notice or lapse of time or both would
constitute a default) under the terms of (A) any material obligation,
agreement, covenant or condition contained in any material contract,
indenture, loan agreement, note, lease or other material instrument to
which it is a party or by which it may be bound, or to which any of its
property or assets is subject, or (B) any law, decree, order, rule or
regulation applicable to TMSI, the Seller, the Servicer or the
Receivables of any court or supervisory, regulatory, administrative or
governmental agency, body or authority, or arbitrator having
jurisdiction over any such entity or its properties or the Receivables,
the default in or the breach or violation of which would have a
material adverse effect on TMSI, the Seller or the Servicer or the
ability of any such entity to perform its obligations under the Basic
Documents to which it is a party; and neither the issuance or delivery
of the Notes, nor the consummation of any other of the transactions
herein contemplated, nor the fulfillment of the terms of the Notes or
the Basic Documents will result in such a breach, violation or default
which would have such a material adverse effect.
(ix) Except as described in the Prospectus, there is no
action, suit or proceeding against or investigation of TMSI, the Seller
or the Servicer now pending, or, to the knowledge of TMSI or the
Seller, threatened against TMSI, the Seller or the Servicer, before any
court, governmental agency or body (A) which is required to be
disclosed in the Prospectus (other than as disclosed therein) or (B)
(1) asserting the invalidity of any Basic Document or the Notes, (2)
seeking to prevent the issuance of the Notes or the consummation of any
of the transactions contemplated by the Basic Documents, (3) which
would materially and adversely affect the performance by any of TMSI,
the Seller or the Servicer of its obligations under the Basic Documents
to which it is a party, or the validity or enforceability of any Basic
Document or the Notes or (4) seeking to adversely affect the federal
income tax attributes of the Notes described in the Prospectus; all
pending legal or governmental proceedings to which TMSI, the Seller or
the Representative is a party or of which any of their respective
property or assets is the subject which are not described in the
Prospectus, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material to TMSI's, the
Seller's and the Servicer's ability to perform their respective
obligations under the Basic Documents to which each is a party.
(x) Each of TMSI, the Seller and the Servicer possesses
such licenses, certificates, authorities or permits issued by the
appropriate state or federal regulatory agencies or governmental bodies
necessary to conduct the businesses now conducted by it (except where
the failure to possess any such license, certificate, authority or
permit would not materially and adversely affect the holders of the
Notes) and none has received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authority
or permit which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would materially and adversely
affect the ability of such entity to perform its obligations under the
Basic Documents to which it is a party.
(xi) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
issuance or sale of the Notes hereunder, except such as may be required
under the 1933 Act, the Trust Indenture Act or the 1933 Act Regulations
or state securities laws.
(xii) At the time of execution and delivery of the Sale and
Servicing Agreement by TMSI, the Seller, the Servicer and the Trust,
the Trust will have acquired good title to the Initial Receivables
(including an assignment of the security interests in the Financed
Vehicles securing the Initial Receivables and the proceeds of each of
the foregoing), free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, and, upon delivery to the
Underwriters of the Notes, the Underwriters will have good and
marketable title to the Notes free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity. At each
Subsequent Transfer Date, the Trust will have acquired good title to
the Subsequent Receivables (including an assignment of the security
interests in the Financed Vehicles securing the Subsequent Receivables
and the proceeds of each of the foregoing), free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(xiii) The transfer of the Initial Receivables by TMS Auto
Finance to the Seller, and by the Seller to the Trust at Closing Time
will be treated by TMS Auto Finance and the Seller for financial
accounting and reporting purposes as a sale of assets and not as a
pledge of assets to secure debt. The transfer of the Subsequent
Receivables by TMS Auto Finance to the Seller, and by the Seller to the
Trust at the applicable Subsequent Transfer Date will be treated by TMS
Auto Finance and the Seller for financial accounting and reporting
purposes as a sale of assets and not as a pledge of assets to secure
debt.
(xiv) Any taxes, fees and other governmental charges that
are assessed and due in connection with the execution, delivery and
issuance of the Basic Documents and the Notes which have become due or
will become due on or prior to Closing Time shall have been paid at or
prior to Closing Time.
(xv) The Trust is not required to be registered as an
"investment company" under the Investment Company Act of 1940 (the
"1940 Act").
(xvi) The Receivables are chattel paper as defined in the
UCC as in effect in the State of California.
(b) Any certificate signed by any officer of TMSI, the Seller or the
Servicer and delivered to the Representative on behalf of the Underwriters or
counsel for the Underwriters shall be deemed a representation and warranty by
TMSI, the Seller and the Servicer as to the matters covered thereby.
Section 2. DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Seller agrees to cause
the Trust to sell the Notes to the Underwriters. In the event that the initial
remittance rates and prices for the Notes have not been agreed upon and the
Pricing Agreement has not been executed and delivered by all parties thereto by
the close of business on the fourth business day following the date of this
Agreement, this Agreement shall terminate forthwith, without liability of any
party to any other party, unless otherwise agreed upon by the Representative,
TMSI and the Seller.
(b) Delivery of the Certificates shall be made at the offices of Stroock &
Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
place as shall be agreed upon by the Representative, TMSI and the Seller, at
10:00 A.M., New York City time, on September 29, 1997, or such other time not
later than ten business days after such date as shall be agreed upon by the
Representative, TMSI and the Seller (such time and date of payment and delivery
being herein called "Closing Time").
(c) The Notes to be delivered will be initially represented by one or more
Class A-1 Notes, one or more Class A-2 Notes and one or more Class A-3 Notes
registered in the name of Cede & Co., the nominee of the Depository Trust
Company ("DTC").
For purposes of this Agreement, all Notes initially represented by one or
more certificates registered in the name of Cede & Co., the nominee of DTC,
shall be referred to herein, collectively, as the "DTC Securities."
The interests of beneficial owners of the DTC Notes will be represented by
book entries on the records of DTC and participating members thereof. Definitive
Notes will be available in exchange for DTC Notes only under the limited
circumstances specified in the Indenture and Trust Agreement. The DTC Notes to
be purchased by the Underwriters will be delivered by the Seller to the
Underwriters (which delivery shall be made through the facilities of DTC)
against payment of the purchase price therefor. Each of the Underwriters hereby
agrees, severally and not jointly, subject to the terms, conditions and
provisions hereof, to purchase from the Trust the Notes in the principal amounts
set forth opposite its name on Schedule I at the prices specified in the Pricing
Agreement. The purchase price shall be paid by the Representative by a same day
federal funds wire payable to the order of the Seller or its designee. The Notes
will be made available for examination by the Representative not later than
10:00 A.M. on the last business day prior to Closing Time.
(d) The Notes shall be offered to the public from time to time for sale in
negotiated transactions or otherwise, at prices determined at the time of sale.
Section 3. COVENANTS OF TMSI AND THE SELLER. TMSI and the Seller covenant
with each of the Underwriters as follows:
(a) Either TMSI or the Seller will promptly notify the
Representative, and confirm the notice in writing, (i) of any amendment
to the Registration Statement; (ii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information; (iii) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceedings for that purpose; and (iv) of the
receipt by either of any notification with respect to the suspension of
the qualification of the Notes or the Certificates for sale in any
jurisdiction or the initiation or threatening of any proceedings for
that purpose. TMSI and the Seller will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Either TMSI or the Seller will give the Representative
notice of their intention to file or prepare any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
(including any revised prospectus which they propose for use by the
Underwriters in connection with the offering of the Notes which differs
from the prospectus on file at the Commission at the time the
Registration Statement becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933
Act Regulations), will furnish the Representative with copies of any
such amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be, and, unless required by law
to do so, will not file any such amendment or supplement or use any
such prospectus to which the Representative or counsel for the
Underwriters shall reasonably object.
(c) TMSI and the Seller will deliver to the Representative
as many signed and as many conformed copies of the Registration
Statement as originally filed and of each amendment thereto (in each
case including exhibits filed therewith) as the Representative may
reasonably request.
(d) TMSI and the Seller will furnish to the Representative,
from time to time during the period when the Prospectus is required to
be delivered under the 1933 Act or the Securities Exchange Act of 1934,
as amended (the "1934 Act"), such number of copies of the Prospectus
(as amended or supplemented) as the Representative may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act
or the respective applicable rules and regulations of the Commission
thereunder.
(e) If any event shall occur as a result of which it is
necessary, in the reasonable opinion of counsel for the Underwriters,
to amend or supplement the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, TMSI and the Seller will forthwith
amend or supplement the Prospectus (in form and substance satisfactory
to counsel for the Underwriter) so that, as so amended or supplemented,
the Prospectus will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the
time it is delivered to a purchaser, not misleading, and TMSI and the
Seller will furnish to the Representative a reasonable number of copies
of such amendment or supplement. Neither the consent of the
Representative of, nor the delivery by the Representative of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5.
(f) TMSI and the Seller will endeavor, in cooperation with
the Underwriter, to qualify the Notes for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as the Representative may designate; provided,
however, that neither TMSI nor the Seller shall be obligated to qualify
as a foreign corporation in any jurisdiction in which it is not so
qualified. In each jurisdiction in which the Notes have been so
qualified, TMSI and the Seller will file such statements and reports as
may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
date hereof.
(g) TMSI and the Seller will file with the Commission such
reports on Form SR as may be required pursuant to Rule 463 under the
1933 Act.
(h) So long as any Notes shall be outstanding, TMSI and the
Seller will deliver to the Underwriters, as promptly as practicable,
such information concerning TMSI, the Seller, the Servicer or the Notes
as the Representative may reasonably request from time to time.
Section 4. PAYMENT OF EXPENSES. TMSI and the Seller will pay all expenses
incident to the performance of their obligations under this Agreement, including
(i) the printing (or other reproducing) and filing of the Registration Statement
as originally filed and of each amendment thereto (other than amendments
relating to the filing of Computational Materials pursuant to Section 11); (ii)
the reproducing of the Basic Documents and the Indenture; (iii) the preparation,
printing, issuance and delivery of the DTC Securities to the Underwriters; (iv)
the fees and disbursements of (A) the Underwriters' counsel, (B) accountants for
TMSI and the Seller and issuer of the comfort letter, (C) the Indenture Trustee
and its counsel, (D) the Owner Trustee and its counsel, and (E) DTC in
connection with the book-entry registration of the DTC Securities; (v) the
qualification of the Notes under state securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey; (vi) the printing (or
other reproducing) and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, of
each preliminary prospectus and of the Prospectus and any amendments or
supplements thereto; (vii) the fees charged by the Insurer; (viii) the fees
charged by each of Standard & Poor's Structured Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc. ("S&P") and Xxxxx'x Investors Service, Inc.
("Moody's") for rating the Notes; and (ix) the reproducing and delivery to the
Underwriters of copies of the Blue Sky Survey.
If this Agreement is terminated by the Representative in accordance with
the provisions of Section 5 or Section 9(a)(i) (unless, in the case of Section
9(a)(i), such termination arises from a change or development involving a
prospective change in or affecting the business or properties of the Insurer),
TMSI and the Seller shall reimburse the Representative for all of its reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of TMSI and the Seller herein contained or in any of the Basic
Documents, to the performance by TMSI and the Seller of their respective
obligations hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective
and, at Closing Time, no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. As of
the Closing Time, the Prospectus shall have been filed with the
Commission in accordance with Rule 424 of the 1933 Act Regulations.
(b) At Closing Time, the Representative shall have
received:
(i) The favorable opinion, dated as of Closing Time, of
Stroock & Stroock & Xxxxx LLP, counsel for the Underwriters,
to the effect that:
(A) The Registration Statement is
effective under the 1933 Act, and, to the best of
their knowledge and information, no stop order
suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission.
(B) At the time the Registration
Statement became effective and at the Representation
Date, the Registration Statement (other than the
financial, numerical, statistical and quantitative
information included therein, as to which no opinion
need be rendered) complied as to form in all
material respects with the requirements of the 1933
Act and the Rules and Regulations thereunder.
(C) The information in the Prospectus
under "The Notes," and "Description of the Purchase
Agreements and the Trust Documents" and the
information in the Prospectus Supplement under
"Description of the Notes" insofar as they
constitute summaries of certain provisions of the
Notes, the Indenture and the Trust Agreement,
summarizes fairly such provisions.
(D) The information in the base
Prospectus under "Prospectus Summary -- Tax Status,"
"Prospectus Summary -- ERISA Considerations"
"Federal Income Tax Consequences," and "ERISA
Considerations" and in the Prospectus Supplement
under "Summary of Terms -- Tax Status," "Summary of
Terms -- ERISA Considerations," "Certain Federal
Income Tax Consequences," and "ERISA
Considerations," to the extent that they constitute
matters of federal, New York or California law,
summaries of legal matters, documents or proceedings
or legal conclusions, has been reviewed by them and
is correct in all material respects.
(E) The Seller and the Servicer have
been duly incorporated and are validly existing and
in good standing under the laws of the State of
Delaware.
(F) The Seller has the power to
engage in the transactions contemplated by each of
this Agreement, the Pricing Agreement, the
Indemnification Agreement and the Trust Agreement,
and the Seller and the Servicer have the power to
engage in the transactions contemplated by each of
the Sale and Servicing Agreement, the Insurance
Agreement and the Purchase Agreement, and have all
requisite power, authority and legal right to
execute and deliver this Agreement, the Pricing
Agreement, the Sale and Servicing Agreement, the
Purchase Agreement, the Indemnification Agreement,
the Insurance Agreement and the Trust Agreement, as
the case may be (and any other documents delivered
in connection therewith) and to perform and observe
the terms and conditions of such instruments.
(G) Each of the Sale and Servicing
Agreement, the Insurance Agreement and the Purchase
Agreement has been duly authorized, executed and
delivered by the Seller and the Servicer, and each
of the Trust Agreement, the Indemnification
Agreement, the Pricing Agreement and this Agreement
has been duly authorized, executed and delivered by
the Seller. Assuming due authorization, execution
and delivery by the other parties thereto, the Sale
and Servicing Agreement, the Purchase Agreement, the
Indemnification Agreement, the Insurance Agreement,
the Trust Agreement, the Pricing Agreement and this
Agreement are legal, valid and binding agreements
enforceable in accordance with their respective
terms against the Seller and the Servicer, as the
case may be, subject (a) to the effect of
bankruptcy, insolvency, reorganization, moratorium
and similar laws relating to or affecting creditors'
rights generally and court decisions with respect
thereto, (b) to the understanding that no opinion is
expressed as to the application of equitable
principles in any proceeding, whether at law or in
equity, and (c) to limitations of public policy
under applicable securities laws as to rights of
indemnity and contribution thereunder.
(H) The Receivables are chattel paper
as defined in the UCC as in effect in the State of
California.
(I) The Seller is not, and will not
as a result of the offer and sale of the Notes as
contemplated in the Prospectus and this Agreement
become, an "investment company" as defined in the
Investment Company Act of 1940, as amended (the
"Investment Company Act"), or a company "controlled
by" an "investment company" within the meaning of
the Investment Company Act.
(J) All actions required to be taken
and all filings required to be made by the Seller or
the Trust under the 1933 Act and the 1934 Act prior
to the sale of the Notes have been duly taken or
made.
(K) The Trust Agreement need not be
qualified under the Trust Indenture Act and the
Trust is not required to register under the
Investment Company Act.
(L) The Indenture has been duly
qualified under the Trust Indenture Act.
Stroock & Stroock & Xxxxx LLP shall additionally
provide an opinion, in form and substance satisfactory to the
Rating Agencies, that if a court concludes that the transfer
of the Receivables from the Seller to the Owner Trustee on
behalf of the Trust is a sale, the interest of the Trust in
the Receivables, the interest of the Trust in the Seller's
security interests in the Financed Vehicles securing the
Receivables and the proceeds of each of the foregoing will be
perfected upon the filing of appropriate UCC-1 financing
statements and, if a court concludes that such transfer is
not a sale, the Sale and Servicing Agreement constitutes a
grant by the Seller to the Trust of a valid security interest
in the Receivables, the interest of the Trust in the Seller's
security interests in the Financed Vehicles securing the
Receivables and the proceeds of each of the foregoing, which
security interest will be perfected upon the filing of
appropriate UCC-1 financing statements.
Stroock & Stroock & Xxxxx LLP shall additionally
provide an opinion, in form and substance satisfactory to the
Rating Agencies, regarding the creation and attachment of a
security interest in the Collateral (including, without
limitation, the Trust Estate, as to which such opinion shall
also cover the perfection and priority of the Indenture
Collateral Agent's interest therein) in favor of the
Indenture Trustee on behalf of the Noteholders. Such opinions
may contain such assumptions, qualifications and limitations
as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such
opinion, such counsel may state that they express no opinion
as to the laws of any jurisdiction other than the federal law
of the United States of America and the laws of the States of
New York and California.
In rendering its opinion, Stroock & Stroock & Xxxxx
LLP shall additionally state that nothing has come to its
attention that has caused it to believe that the Registration
Statement, at the time it became effective, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus, at the Representation Date (unless the term
"Prospectus" refers to a prospectus which has been provided
to the Underwriters by TMSI for use in connection with the
offering of the Notes which differs from the Prospectus on
file at the Commission at the Representation Date, in which
case at the time it is first provided to the Underwriters for
such use) or at Closing Time, included an untrue statement of
a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading
(other than (i) the financial, numerical, statistical and
quantitative information contained therein and (ii) the
information under the heading "The Insurer," as to which such
counsel need express no view).
In rendering its opinions, Stroock & Stroock & Xxxxx
LLP may rely on certificates of responsible officers of the
Seller, the Indenture Trustee, the Owner Trustee, and public
officials or, as to matters of law other than New York,
California or Federal law or the General Corporation Law of
the State of Delaware, on opinions of other counsel (copies
of which opinions shall be delivered to you). Such opinion
may contain such assumptions, qualifications and limitations
as are customary in opinions of this type and are reasonably
acceptable to the Representative.
(ii) The favorable opinion of Stroock & Stroock & Xxxxx LLP, special
California counsel for the Seller and the Servicer, dated as of the Closing Time
to the effect that (i) noting the assignee's name on a certificate of title,
where a validly perfected security interest in a motor vehicle, registered in
California and for which a certificate of title has been issued by the
Department of Motor Vehicles of the State of California, is not necessary to
continue the perfection of the security interest assigned as against the debtor
on the Contract, creditors and transferees of the debtor on the Contract, and
(ii) the Indenture Collateral Agent has acquired a perfected first priority
security interest in the Financed Vehicles located in the State of California
and subject to the statutes, laws and regulations governing motor vehicles
located in the State of California. Such opinion may contain such assumptions,
qualifications and limitations as are customary in opinions of this type and are
reasonably acceptable to counsel to the Underwriters. In rendering such opinion,
such counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of California.
(iii) The favorable opinion, dated as of Closing Time, of corporate counsel
for the Seller, the Servicer and TMSI, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(A) TMSI has been duly organized and
is validly existing and is in good standing under
the laws of the State of New Jersey.
(B) TMSI has the power to engage in
the transactions contemplated by this Agreement, the
Pricing Agreement, the Sale and Servicing Agreement,
the Indemnification Agreement and the Insurance
Agreement and has all requisite power, authority and
legal right to execute and deliver this Agreement,
the Pricing Agreement, the Sale and Servicing
Agreement, the Indemnification Agreement and the
Insurance Agreement (and any other documents
delivered in connection therewith) and to perform
and observe the terms and conditions of such
instruments.
(C) This Agreement, the Pricing
Agreement, the Sale and Servicing Agreement, the
Indemnification Agreement and the Insurance
Agreement have been duly authorized, executed and
delivered by TMSI and, assuming due authorization,
execution and delivery by the other parties thereto,
are legal, valid and binding agreements of TMSI and
assuming such agreements were governed by the laws
of the State of New Jersey, would be enforceable in
accordance with their respective terms against TMSI
subject (a) to the effect of bankruptcy, insolvency,
reorganization, moratorium and similar laws relating
to or affecting creditors' rights generally and
court decisions with respect thereto, (b) to the
understanding that no opinion is expressed as to the
application of equitable principles in any
proceeding, whether at law or in equity, and (c) to
limitations of public policy under applicable
securities laws as to rights of indemnity and
contribution thereunder.
(D) Neither the transfer of the
Receivables by the Seller to the Owner Trustee on
behalf of the Trust, nor the assignment by the
Seller of the Trust Estate to the Trust, nor the
consummation of the transactions contemplated by,
nor the fulfillment of the terms of, the Sale and
Servicing Agreement, the Indemnification Agreement,
the Insurance Agreement, the Purchase Agreement,
this Agreement and the Pricing Agreement, in the
case of the Seller and TMSI, and the Sale and
Servicing Agreement, the Insurance Agreement and the
Purchase Agreement, in the case of the Servicer, and
the Trust Agreement, in the case of the Seller,
conflicts or will conflict with or results or will
result in a breach of or constitutes or will
constitute a default under (a) the Certificate of
Incorporation or Bylaws of TMSI, the Seller or the
Servicer, as applicable, (b) the terms of any
material indenture or other material agreement or
instrument of which counsel has knowledge to which
TMSI, the Seller or the Servicer, as applicable, is
a party or by which it is bound or to which it is
subject or (c) any statute or order, rule,
regulation, writ, injunction or decree of which
counsel has knowledge, or of any court, governmental
authority or regulatory body to which TMSI, the
Seller or the Servicer, as applicable, is subject or
by which it is bound, or results in, or will result
in the creation or imposition of any lien or
encumbrance upon the Trust Estate or upon the
related Notes, except as otherwise contemplated by
the Indenture.
(E) No consent, approval,
authorization or order of any court or governmental
agency or body is required for the execution,
delivery and performance by TMSI or the Seller of,
or compliance by TMSI or the Seller with, this
Agreement, the Pricing Agreement, the Sale and
Servicing Agreement, the Indemnification Agreement
or the Insurance Agreement, or the offer, issuance,
sale or delivery of the Notes, or, in the case of
the Servicer, by the Servicer of, or compliance by
the Servicer with, the Sale and Servicing Agreement,
the Insurance Agreement or the Purchase Agreement,
or, in the case of the Seller, by the Seller of, or
compliance of the Seller with, the Trust Agreement
or the consummation of any other transactions by
TMSI, the Seller or the Servicer contemplated by the
Sale and Servicing Agreement, the Purchase
Agreement, this Agreement, the Indemnification
Agreement, the Insurance Agreement, the Trust
Agreement and the Pricing Agreement, as the case may
be, except as may be required under the blue sky
laws of any jurisdiction (as to which such counsel
need not opine) and such other approvals as have
been obtained.
(F) Except as set forth in the
Prospectus Supplement, there is no action, suit,
proceeding or investigation pending or, to the best
of such counsel's knowledge, threatened against the
Seller, the Servicer or TMSI which, in such
counsel's judgment, either in any one instance or in
the aggregate, may result in any material adverse
change in the business, operation, financial
condition, properties or assets of the Seller, the
Servicer or TMSI or in any material impairment of
the right or ability of the Seller, the Servicer or
TMSI to carry on its business substantially as now
conducted or result in any material liability on the
part of the Seller, the Servicer or TMSI or which
would draw into question the validity of this
Agreement, the Pricing Agreement, the Certificates,
the Purchase Agreement, the Indemnification
Agreement, the Insurance Agreement, the Trust
Agreement, the Sale and Servicing Agreement or of
any action taken or to be taken in connection with
the transactions contemplated thereby, or which
would be likely to impair materially the ability of
any of the Seller, the Servicer or TMSI to perform
under the terms of this Agreement, the Pricing
Agreement, the Purchase Agreement, the
Indemnification Agreement, the Insurance Agreement,
the Sale and Servicing Agreement or the Trust
Agreement, as applicable.
In rendering its opinions, such counsel may rely on
certificates of responsible officers of the Seller, the
Servicer and TMSI, and public officials or, as to matters of
law other than New Jersey or the Federal law, on opinions of
other counsel (copies of which opinions shall be delivered to
you). Such opinion may contain such assumptions,
qualifications and limitations as are customary in opinions
of this type and are reasonably acceptable to the
Representative.
(iv) The favorable opinion of in-house counsel to
the Servicer, or such other counsel acceptable to counsel for
the Underwriters, dated as of Closing Time, satisfactory in
form and substance to counsel for the Underwriters, to the
effect that:
Such counsel has been advised of the
Servicer's standard operating procedures relating to
the Servicer's acquisition of a perfected first
priority security interest in the vehicles financed
by the Servicer pursuant to the retail installment
sale contracts in the ordinary course of the
Servicer's business. Assuming that the Servicer's
standard procedures are followed with respect to the
perfection of security interests in the Financed
Vehicles (such counsel having no reason to believe
that the Servicer has not or will not continue to
follow its standard procedures in connection with
the perfection of security interests in the Financed
Vehicles), the Servicer has acquired or will acquire
a perfected first priority security interest in the
Financed Vehicles.
Such opinion may contain such assumptions,
qualifications and limitations as are customary in opinions
of this type and are reasonably acceptable to counsel to the
Underwriters.
(v) The favorable opinion, dated as of Closing Time,
of counsel for the Insurer, in form and substance
satisfactory to counsel for the Underwriters, to the effect
that:
(A) The Insurer is a stock insurance
company duly organized, validly existing and
authorized to transact financial guaranty insurance
business under the laws of the State of New York.
(B) The Note Policy, the
Indemnification Agreement and the Insurance
Agreement have been duly authorized, executed and
delivered by the Insurer.
(C) The Note Policy, the
Indemnification Agreement and the Insurance
Agreement constitute valid and binding obligations
of the Insurer, enforceable against the Insurer in
accordance with their terms, subject, as to the
enforcement of remedies, to bankruptcy, insolvency,
reorganization, rehabilitation, moratorium and other
similar laws affecting the enforceability of
creditors' rights generally applicable in the event
of the bankruptcy or insolvency of the Insurer and
to the application of general principles of equity
and subject, in the case of the Insurance Agreement,
to principles of public policy limiting the right to
enforce the indemnification provisions contained
therein insofar as such provisions relate to
indemnification for liabilities arising under the
securities law.
(D) The Note Policy is exempt from
registration under the Securities Act of 1933, as
amended (the "Act").
(E) Neither the execution nor the
delivery by the Insurer of the Note Policy, the
Indemnification Agreement or the Insurance
Agreement, nor the performance by it of its
obligations thereunder, will conflict with any
provision of the certificate of incorporation or the
by-laws of the Insurer or, to the best of such
counsel's knowledge, result in a breach of, or
constitute a default under, any agreement or other
instrument to which the Insurer is a party or by
which it or any of its property is bound or, to the
best of such counsel's knowledge, violate any
judgment, order or decree applicable to the Insurer
of any governmental or regulatory body,
administrative agency, court or arbitrator having
jurisdiction over the Insurer (except that in the
published opinion of the Securities and Exchange
Commission the indemnification provisions of the
Indemnification Agreement, insofar as they relate to
indemnification for liabilities arising under the
Act, are against public policy as expressed in the
Securities Act of 1933, as amended, and are
therefore unenforceable).
Such counsel shall additionally state that nothing
has come to its attention that has caused it to believe that,
as of the date of the Prospectus Supplement, relating to the
offer and sale of the Notes, to the Prospectus forming a part
of the Registration Statement on Form S-3 (No. 333-14075)
filed by the Company with the Securities and Exchange
Commission and declared effective on December 9, 1996, or as
of the date of counsel's opinion, the information set forth
under the captions "The Insurer" and "The Policies" in the
Prospectus Supplement, insofar as such statements constitute
a description of the Policies, accurately summarize the
Policies(such counsel not being required to express an
opinion with respect to any financial statements or other
financial information contained or referred to therein). Such
statement may be given with the understanding that such
information is limited and does not purport to provide the
scope of disclosure required to be included in a prospectus
with respect to a Registrant under the Securities Act of
1933, as amended, in connection with the public offer and
sale of securities of such registrant.
In rendering this opinion, such counsel may rely, as
to matters of fact, on certificates of responsible officers
of the Insurer, the Trustee and public officials. Such
opinion may assume the due authorization, execution and
delivery of the instruments and documents referred to therein
by the parties thereto other than the Insurer.
(vi) The favorable opinion, dated as of Closing
Time, of Xxxxxxxx, Xxxxxx & Finger, in form and substance
satisfactory, to counsel for the Underwriters, to the effect
that:
(A) The Owner Trustee is a Delaware
banking corporation duly incorporated and organized
and validly existing under the laws of the State of
Delaware.
(B) The Owner Trustee has the full
corporate trust power to accept the office of owner
trustee under the Trust Agreement and to enter into
and perform its obligations under the Trust
Agreement, the Sale and Servicing Agreement and, on
behalf of the Trust, under the Indenture and the
Sale and Servicing Agreement.
(C) The execution and delivery of the
Trust Agreement, the Sale and Servicing Agreement
and, on behalf of the Trust, of the Indenture and
the Sale and Servicing Agreement, and the
performance by the Owner Trustee of its obligations
under the Trust Agreement and the Sale and Servicing
Agreement, as well as the performance by the Owner
Trustee of its obligations on behalf of the Trust
under the Indenture and the Sale and Servicing
Agreement have been duly authorized by all necessary
action of the Owner Trustee and each has been duly
executed and delivered by the Owner Trustee.
(D) The Trust Agreement constitutes
the valid and binding obligations of the Owner
Trustee enforceable against the Owner Trustee in
accordance with its terms.
(E) The execution and delivery by the
Owner Trustee of the Trust Agreement, the Sale and
Servicing Agreement and, on behalf of the Trust, of
the Indenture and the Sale and Servicing Agreement
do not require any consent, approval or
authorization of, or any registration or filing
with, any applicable governmental authority.
(F) Each of the Notes has been duly
executed and delivered by the Owner Trustee, on
behalf of the Trust.
(G) Neither the consummation by the
Owner Trustee of the transactions contemplated in
the Sale and Servicing Agreement, the Indenture or
the Trust Agreement, nor the fulfillment of the
terms thereof by the Owner Trustee will conflict
with, result in a breach or violation of, or
constitute a default under any law or the charter,
by-laws or other organizational documents of the
Owner Trustee or the terms of any indenture or other
agreement or instrument known to such counsel and to
which the Owner Trustee or any of its subsidiaries
is a party or is bound or any judgment, order or
decree known to such counsel to be applicable to the
Owner Trustee or any of its subsidiaries of any
court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction
over the Owner Trustee or any of its subsidiaries.
(H) There are no actions, suits or
proceedings pending or, to the best of such
counsel's knowledge, threatened against the Owner
Trustee (as owner trustee under the Trust Agreement
or in its individual capacity) before or by any
governmental authority that might materially and
adversely affect the performance by the Owner
Trustee of its obligations under, or the validity or
enforceability of, the Trust Agreement or the Sale
and Servicing Agreement, as applicable.
(I) The execution, delivery and
performance by the Owner Trustee of the Sale and
Servicing Agreement, the Indenture or the Trust
Agreement will not subject any of the property or
assets of the Trust or any portion thereof, to any
lien created by or resulting from any actions of the
Owner Trustee that are unrelated to the transactions
contemplated in such agreements.
(J) The Trust has been duly formed
and is validly existing as a business trust under
the Business Trust Statute. The Trust Agreement
authorizes the Trust to execute and deliver the
Trust Agreement, the Indenture and the Sale and
Servicing Agreement, to issue the Notes and the
Certificates and to grant the Trust Estate to the
Trustee as security for the Notes.
(K) To the extent that Article 9 of
the Uniform Commercial Code as in effect in the
State of Delaware (the "Delaware UCC") is applicable
(without regard to conflicts of laws principles),
and assuming that the security interest created by
the Indenture in the Receivables has been duly
created and has attached, upon the filing of a UCC-1
financing statement with the Secretary of State of
the State of Delaware the Indenture Trustee will
have a perfected security interest in such
Receivables and the proceeds thereof, and such
security interest will be prior to any other
security interest that is perfected solely by the
filing of financing statements under the Delaware
UCC, excluding purchase money security interests
under Section 9-312(4) of the UCC and temporarily
perfected security interests in proceeds under
Section 9-306(3) of the Delaware UCC.
(L) No re-filing or other action is
necessary under the Delaware UCC in order to
maintain the perfection of such security interest
except for the filing of continuation statements at
five year intervals.
(M) Under Section 3805(b) of the
Business Trust Statute, no creditor of any
Certificateholder shall have any right to obtain
possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of
the Trust except in accordance with the terms of the
Trust Agreement.
(N) Under Section 3805(c) of the
Business Trust Statute, and assuming that the Sale
and Servicing Agreement conveys good title to the
Receivables to the Trust as a true sale and not as a
security arrangement, the Trust rather than the
Certificateholders is the owner of the Receivables.
(O) The Delaware Trustee is not
required to hold legal title to the Trust Estate in
order for the Trust to qualify as a business trust
under the Act.
(P) The execution and delivery by the
Owner Trustee of the Trust Agreement and, on behalf
of the Trust, the Indenture and the Sale and
Servicing Agreement do not require any consent,
approval or authorization of, or any registration or
filing with, any governmental authority of the State
of Delaware, except for the filing of the
Certificate of Trust with the Secretary of State.
(Q) Neither the consummation by the
Owner Trustee of the transactions contemplated in
the Trust Agreement or, on behalf of the Trust, the
transactions contemplated in the Trust Agreement,
the Indenture and the Sale and Servicing Agreement
nor the fulfillment of the terms thereof by the
Owner Trustee will conflict with or result in a
breach or violation of any law of the State of
Delaware.
Such opinion may contain such assumptions,
qualifications and limitations as are customary in opinions
of this type and are reasonably acceptable to counsel to the
Underwriters. In rendering such opinion, such counsel may state that
they express no opinion as to the laws of any jurisdiction other than
the federal law of the United States of America and the laws of the
State of Delaware.
(vii) The favorable opinion,
dated as of Closing Time, of Xxxxx Xxxxxxxxxx, counsel for the
Indenture Trustee, the Indenture Collateral Agent, in form and
substance satisfactory to counsel for the Underwriters.
(viii) Such other opinions as may
be requested by (i) the Rating Agencies, which opinions shall
also be for the benefit of the Insurer and the Underwriters
and (ii) the Insurer, which opinions shall also be for the
benefit of the Underwriters.
(c) At Closing Time there shall not have been, since the
date hereof or since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Seller, the
Servicer or TMSI and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representative shall have received a certificate signed by one or more
duly authorized officers of TMSI and the Seller, dated as of Closing
Time, to the effect that (i) there has been no such material adverse
change; (ii) the representations and warranties in Section 1(a) hereof
are true and correct in all material respects with the same force and
effect as though expressly made at and as of Closing Time; (iii) each
of TMSI and the Seller has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to
Closing Time; and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(d) At or prior to the delivery of the Prospectus
Supplement, the Representative shall have received from KPMG Peat
Marwick a letter dated as of such date and in form and substance
satisfactory to the Representative, to the effect that they have
carried out certain specified procedures, not constituting an audit,
with respect to (i) certain amounts, percentages and financial
information relating to the Servicer's servicing portfolio which are
included in the Prospectus Supplement and which are specified by the
Underwriter, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial
and other records of the Servicer, (ii) certain information regarding
the Receivables and the Receivables Files which are specified by the
Representative and contained in the Prospectus Supplement and setting
forth the results of such specified procedures and (iii) certain
information regarding the Receivables and the Receivables Files which
are specified by the Representative, as representative of the
Underwriters, and contained in the Current Report on Form 8-K described
in Section 5(1) hereof and setting forth the results of such specified
procedures.
(e) At Closing Time, the Representative shall have received
from the Trustee a certificate signed by one or more duly authorized
officers of the Indenture Trustee, dated as of Closing Time, as to the
due acceptance of the Indenture by the Indenture Trustee and the due
authentication of the Notes by the Indenture Trustee and such other
matters as the Representative shall request.
(f) At Closing Time, the Representative shall have received
a certificate signed by one or more duly authorized officers of the
Seller, the Servicer and TMSI dated as of Closing Time to the effect
that:
(i) the representations and
warranties of TMSI, the Seller and the Servicer in each of the
Basic Documents to which it is a party are true and correct in
all material respects at and on the Closing Date, with the
same effect as if made on the Closing Date;
(ii) each of TMSI, the Seller and
the Servicer has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied in connection with the sale and delivery of the
Notes;
(iii) all statements and
information contained in the Prospectus Supplement under the
caption "The Receivables" and contained in the base Prospectus
under the captions "The Receivables," "The Seller," "TMS Auto
Finance," and "The Money Store" are true and accurate in all
material respects and nothing has come to such officer's
attention that would lead him to believe that any of the
specified sections contains any untrue statement of a material
fact or omits to state any material fact necessary in order to
make the statements and information therein, in the light of
the circumstances under which they were made, not misleading;
(iv) the information set forth in
the Schedule of Receivables required to be furnished
pursuant to the Sale and Servicing Agreement is true
and correct in all material respects;
(v) the copies of the Charter and
By-laws of the Seller, the Servicer and TMSI attached to such
certificate are true and correct and, are in full force and
effect on the date thereof;
(vi) except as may otherwise be
disclosed in the Prospectus, there are no actions, suits or
proceedings pending (nor, to the best knowledge of such
officers, are any actions, suits or proceedings threatened),
against or affecting the Seller, the Servicer or TMSI, which
if adversely determined, individually or in the aggregate,
would adversely affect the Seller's or Servicer's obligations
under any of the Basic Documents to which it is a party;
(vii) each person who, as an
officer or representative of the Seller, the Servicer or TMSI,
as the case may be, signed (a) this Agreement, (b) the Sale
and Servicing Agreement, (c) the Trust Agreement, (d) the
Purchase Agreement, (e) the Pricing Agreement, (f) the
Insurance Agreement, or (g) the Indemnification Agreement or
(h) any other document delivered prior hereto or on the date
hereof in connection with the purchase described in this
Agreement and the Sale and Servicing Agreement, was, at the
respective times of such signing and delivery, and is now duly
elected or appointed, qualified and acting as such officer or
representative;
(viii) except as otherwise set forth
in the Sale and Servicing Agreement, each of the Receivables
referred to in the Sale and Servicing Agreement was purchased
by the Seller from TMS Auto Finance, which acquired it from a
Dealer;
(ix) a certified true copy of the
resolutions of the board of directors of TMSI and the Seller
with respect to the sale of the Notes subject to this
Agreement and the Sale and Servicing Agreement, which
resolutions have not been amended and remain in full force and
effect are attached to such certificate;
(x) all payments received with respect
to the Initial Receivables after the Initial Cutoff
Date, and certain payments received with respect to the
Precomputed Receivables on or prior to the Initial Cutoff Date
that relate to Scheduled Payments due after the Cutoff Date,
as set forth in the Sale and Servicing Agreement, have been
deposited in the Collection Account, and are, as of the
Closing Date, in the Collection Account;
(xi) each of TMSI, the Seller and the
Servicer has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied in connection with the issuance, sale and delivery
of the Receivables and the Notes;
(xii) all statements contained in
the Prospectus with respect to TMSI, the Seller and the
Servicer are true and accurate in all material respects and
nothing has come to such officer's attention that would lead
such officer to believe that the Prospectus contains any
untrue statement of a material fact or omits to state any
material fact;
(g) On or before the Closing Time the Seller shall have
delivered to the Trustee, to hold in trust for the benefit of the
holders of the Notes, Initial Receivables with an aggregate Principal
Balance as of the Initial Cutoff Date of approximately $110,000,000.
TMSI and the Seller shall, immediately following the sale of the Notes,
cause to be deposited with the Indenture Trustee, as collateral agent,
for deposit (i) in the Pre-Funding Account (as defined in the
Prospectus Supplement), cash in an amount equal to the sum of
approximately $20,000,000 and (ii) in the Capitalized Interest Account
(as defined in the Prospectus Supplement), cash in an amount equal to a
sum satisfactory to the Insurer.
(h) The Note Policy shall have been delivered to the
Trustee.
(i) At Closing Time, the Class A-1 Notes shall have been
rated "A-1+" by S&P and "P-1" by Xxxxx'x, and the Class A-2 Notes, the
Class A-3 Notes, shall have been rated "AAA" by S & P and "AAA" by
Xxxxx'x and neither S&P nor Xxxxx'x shall have placed the Notes under
surveillance or review with possible negative implications.
(j) At Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and delivery of the Securities as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by TMSI, the
Seller and the Servicer in connection with the issuance and sale of the
Notes as herein contemplated shall be satisfactory in form and
substance to TMSI and counsel for the Underwriters.
(k) On or before the Closing Time TMSI shall have delivered
to the Representative a Current Report on Form 8-K containing a
detailed description of the Receivables actually being delivered to the
Owner Trustee and pledged to the Indenture Trustee at Closing Time, in
form and substance satisfactory to the Representative.
(l) The Representative shall have received evidence
satisfactory to it that, on or before the Closing Date, UCC-1 financing
statements have been or are being filed in the appropriate filing
offices reflecting the transfer of the interest in the Receivables to
the Owner Trustee on behalf of the Trust and the proceeds thereof to
the Trust and the grant of the security interest by the Trust in the
Receivables and the proceeds thereof to the Indenture Trustee.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representative by notice to the Seller at any time at or prior to Closing time,
and such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof.
Section 6. INDEMNIFICATION.
(a) TMSI and the Seller jointly and severally agree to indemnify and hold
harmless each of the Underwriters and each person, if any, who controls either
of the Underwriters within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any untrue statement or omission
described in clause (i) above, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
TMSI; and
(iii) against any and all expense whatsoever, as reasonably
incurred (including, subject to Section 6(c) hereof, the reasonable
fees and disbursements of counsel chosen by such Underwriter) in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any untrue
statement or omission described in clause (i) above, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with the information referred to in clauses (w),
(x), (y) and (z) of the immediately following paragraph; provided, further, such
indemnity with respect to any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with the
information referred to in clauses (w), (x), (y) and (z) of the immediately
following paragraph and contained in the Prospectus or any preliminary
prospectus shall not inure to the benefit of either Underwriter (or person
controlling such Underwriter) from whom the person suffering any such loss,
claim, damage or liability purchased the Notes which are the subject thereof if
such person did not receive a copy of the Prospectus at or prior to the
confirmation of the sale of such Notes or to such person in any case where such
delivery is required by the 1933 Act and the untrue statement or omission of a
material fact contained in any preliminary prospectus was corrected in the
Prospectus and the Prospectus was delivered to such Underwriter in a timely
manner in accordance with Section 3(d).
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless TMSI and the Seller, their directors, each of TMSI's and Seller's
officers who signed the Registration Statement, and each person, if any, who
controls TMSI or the Seller within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, contained in written information furnished by such Underwriter
through the Representative specifically for use in the Prospectus Supplement, it
being understood and agreed that the only such information is contained in (w)
the seventh paragraph on the inside cover (discussing the risk of a lack of
secondary trading) of the Prospectus Supplement (or any amendment or supplement
thereto), (x) the first paragraph under "Risk Factors--Limited Liquidity" of the
Prospectus, (y) the information contained under "Underwriting" of the Prospectus
Supplement, and (z) any Computational Materials prepared by such Underwriter,
except to the extent of any errors in the Computational Materials that are
caused by errors in the pool information provided by the Company to the
applicable Underwriter. The parties hereto agree that no Underwriter shall be
under any liability to the Company, the Originators or any other person
identified in this paragraph (b) for Computational Materials prepared by any
other Underwriter.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve the
indemnifying party from any liability that it may have to any indemnified party
except to the extent that it has been prejudiced in any material respect by such
failure or from any liability that it may have otherwise than under this Section
6. In case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses other than the reasonable costs of investigation subsequently
incurred in connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence, (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii). After such notice from the indemnifying party to
such indemnified party, the indemnifying party will not be liable for the costs
and expenses of any settlement of such action effected by such indemnified party
without the consent of the indemnifying party. No indemnifying party shall,
without the prior written consent of the indemnified party, which consent shall
not be unreasonably withheld, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified party unless
such settlement includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action.
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, TMSI and the Seller
jointly and severally, on the one hand, and the Underwriters, on the other hand,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by TMSI
and the Seller jointly and severally, on the one hand, and the Underwriters, on
the other hand (i) in such proportion as is appropriate to reflect the relative
benefits received by TMSI and the Seller on the one hand and the Underwriters on
the other from the sale of the Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of TMSI and the Seller on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by TMSI and
the Seller on the one hand and the Underwriters on the other shall be deemed to
be in such proportion that the Underwriters are responsible for that portion
represented by the excess, if any, of the purchase price received by the
Underwriters for the sale of the Notes over the purchase price paid by the
Underwriters for the Notes (the "Spread") (or, with respect to Computational
Materials furnished by an Underwriter, the Spread received by such Underwriter
with respect to the principal amount of Notes set forth next to such
Underwriter's name on Schedule I hereto; and TMSI and the Seller shall be
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by TMSI or the Seller or by any Underwriter
through the Representative and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this Section 7. Notwithstanding the
provisions of this Section 7, the Underwriters shall not be required to
contribute any amount in excess of the amount by which the Spread exceeds the
amount of any damages which the Underwriters have otherwise been required to pay
in respect of such losses, liabilities, claims, damages and expenses. For
purposes of this Section 7, each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Underwriters and each respective director of the Seller,
each officer of the Seller who signed the Registration Statement, and each
respective person, if any, who controls the Seller within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Seller.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement and
the Pricing Agreement, or contained in certificates of officers of TMSI and the
Seller submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the Underwriters
or any controlling person thereof, or by or on behalf of TMSI or the Seller, and
shall survive delivery of the Notes to the Underwriters.
Section 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice to TMSI and
the Seller, at any time at or prior to Closing Time (i) if there has been, since
the time of execution of this Agreement or since the respective dates as of
which information is given in the Registration Statement or Prospectus, any
change, or any development involving a prospective change, in or affecting
particularly the business or properties of TMSI, the Servicer or the Seller
considered as one entity or the Insurer which, in the Representative's
reasonable judgment, materially impairs the investment quality of the Notes;
(ii) if there has occurred any downgrading in the rating of the claims-paying
ability of the Insurer by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the 0000 Xxx) which,
in the reasonable judgment of the Representative, materially impairs the
investment quality or marketability of the Notes or if the claims-paying ability
of the Notes or the Insurer has been put on the "watch list" of any such rating
organization with negative implications; (iii) if there has occurred any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such exchange or
by any governmental authority; (iv) if any banking moratorium has been declared
by Federal or New York authorities; (v) any suspension or limitation of trading
of any securities of TMSI on any exchange or in the over-the-counter market; or
(vi) if there has occurred any outbreak or escalation of major hostilities in
which the United States of America is involved, any declaration of war by
Congress, or any other substantial national or international calamity or
emergency if, in the Representatives judgment, the effects of any such outbreak,
escalation, declaration, calamity, or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the Notes
or the Certificates.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof.
Section 10. COMPUTATIONAL MATERIALS. (a) It is understood that any
Underwriter may prepare and provide to prospective investors certain
Computational Materials (as defined below) in connection with the Company's
offering of the Notes, subject to the following conditions:
(i) Each Underwriter shall comply with all applicable laws and regulations
in connection with the use of Computational Materials including the No-Action
Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx Acceptance
Corporation I, Xxxxxx, Peabody & Co. Incorporated and Xxxxxx Structured Asset
Corporation, as made applicable to other issuers and underwriters by the
Commission in response to the request of the Public Securities Association dated
May 24, 1994, and the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (collectively, the "Xxxxxx/PSA
Letters").
(ii) As used herein, "Computational Materials" and the term "ABS Term
Sheets" shall have the meanings given such terms in the Xxxxxx/PSA Letters, but
shall include only those Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of an Underwriter.
(iii) Each Underwriter shall provide the Company with representative forms
of all Computational Materials prior to their first use, to the extent such
forms have not previously been approved by the Company for use by such
Underwriter. The Underwriter shall provide to the Company, for filing on Form
8-K as provided in Section 11(b), copies of all Computational Materials that are
to be filed with the Commission pursuant to the Xxxxxx/PSA Letters. The
Underwriter may provide copies of the foregoing in a consolidated or aggregated
form. All Computational Materials described in this subsection (a)(iii) must be
provided to the Company not later than 10:00 a.m. New York time one business day
before filing thereof is required pursuant to the terms of this Agreement.
(iv) If an Underwriter does not provide any Computational Materials to the
Company pursuant to subsection (a)(iii) above, such Underwriter shall be deemed
to have represented, as of the Closing Date, that it did not provide any
prospective investors with any information in written or electronic form in
connection with the offering of the Certificates that is required to be filed
with the Commission in accordance with the Xxxxxx/PSA Letters.
(v) In the event of any delay in the delivery by any Underwriter to the
Company of all Computational Materials required to be delivered in accordance
with subsection (a)(iii) above, the Company shall have the right to delay the
release of the Prospectus to investors or to any Underwriter, to delay the
Closing Date and to take other appropriate actions in each case as necessary in
order to allow the Company to comply with is agreement set forth in Section
11(b) to file the Computational Materials by the time specified therein.
(b) The Company shall file the Computational Materials (if any) provided to
it by each Underwriter under Section 11(a)(iii) with the Commission pursuant to
a Current Report on Form 8-K no later than 10:00 a.m. on the date required
pursuant to the Xxxxxx/PSA Letters.
Section 11. NOTICES. All notices and other 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
Representative shall be directed to Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Asset Finance Group (fax: (000) 000-0000); and
notices to TMSI or the Seller shall be directed to it at 0000 Xxxxxx Xxxxxx,
Xxxxx, Xxx Xxxxxx 00000, Attention: Executive Vice President (fax: (908)
000-0000).
Section 12. PARTIES. This Agreement and the Pricing Agreement shall each
inure to the benefit of and be binding upon the Underwriters, TMSI, the Seller
and their respective successors. Nothing expressed or mentioned in this
Agreement or the Pricing Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters, TMSI, the Seller and
their respective successors and the controlling persons and officers and
directors referred to in Section 6 and 7 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or with
respect to this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and the Pricing Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Underwriters, TMSI, the Seller and their respective successors,
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Notes from any Underwriter shall be deemed to be a
successor by reason merely of such purchase. TMSI and the Seller shall be
jointly and severally liable for all obligations incurred under this Agreement
and the Pricing Agreement.
Section 13. GOVERNING LAW AND TIME. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to principles of conflicts of laws, applicable
to agreements made and to be performed in said State. Unless otherwise set forth
herein, specified times of day refer to New York time.
Section 14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to TMSI and the Seller a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, the Seller and TMSI in accordance with its terms.
Very truly yours,
TMS AUTO HOLDINGS, INC.
By: ___________________
Name:
Title:
THE MONEY STORE INC.
By: ___________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXX XXXXXX INC.
CREDIT SUISSE FIRST BOSTON
By: XXXXX XXXXXX INC.
By: _______________________
Name:
Title:
SCHEDULE I
PRINCIPAL INITIAL
UNDERWRITER CLASS AMOUNT OF NOTES
Xxxxx Xxxxxx Inc. A-1 $
Credit Suisse First Boston A-1 $
Xxxxx Xxxxxx Inc. A-2 $
Credit Suisse First Boston A-2 $
Xxxxx Xxxxxx Inc. A-3 $
Credit Suisse First Boston A-3 $
