Exhibit 1.1
EXECUTION COPY
$1,000,000,000
THE MONEY STORE INC.
The Money Store Asset Backed Certificates
Series 1996-C
UNDERWRITING AGREEMENT
September 20, 1996
Prudential Securities Incorporated
as representative of the Underwriters
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Money Store Inc., a New Jersey corporation (the "Company"), and each of
the Originators listed on Annex A hereto (each an "Originator" and collectively,
the "Originators") hereby confirm their agreement with Prudential Securities
Incorporated ("Prudential" or the "Representative") on behalf of the several
Underwriters listed on Annex B hereto (the "Underwriters), with respect to the
delivery by the Company, on behalf of the Originators, of certificates entitled
"The Money Store Asset Backed Certificates, Series 1996-C, Class A-1, Class X-0,
Xxxxx X-0, Class A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9,
Class A-10, Class A-11, Class A-12, Class A-13, Class A-14 and Class A-15 (the
"Class A Certificates") to be issued pursuant to a Pooling and Servicing
Agreement, to be dated as of August 31, 1996 (the "Pooling and Servicing
Agreement"), among the Company, as Representative, Servicer and Claims
Administrator, the Originators and The Bank of New York, as trustee ("Bank of
New York" or, in its capacity as trustee under the Pooling and Servicing
Agreement, the "Trustee"). The initial principal amount of each Class of Class A
Certificates will be as set forth on Annex B hereto. The Class A Certificates
represent the senior beneficial interests in a trust fund (the "Trust Fund")
that will consist at the Closing Time (as defined in Section 2 hereof) primarily
of four sub-trusts, consisting of one pool of fixed rate first and second lien
home equity mortgage loans (the "Pool I Home Equity Loans"), one pool of
adjustable rate first lien home equity mortgage loans (the "Pool II Home Equity
Loans"), one pool of home improvement mortgage loans (the "Pool III Home
Improvement Loans") and one pool of multifamily mortgage loans (the "Pool IV
Multifamily Loans"), amounts to be deposited in the Pre-Funding Account and
certain related properties. The Pool I Home Equity Loans, Pool II Home Equity
Loans, Pool III Home Improvement Loans and Pool IV Multifamily Loans are
referred to herein collectively as the "Loans". Simultaneously with the issuance
and delivery of the Class A Certificates as contemplated herein, the Company, on
behalf of the Originators, will cause to be issued under the Pooling and
Servicing Agreement certificates entitled "The Money Store Asset Backed
Certificates, Series 1996-C, Class R" (the "Class R Certificates," and, together
with the Class A Certificates, the "Certificates"). The Certificates will
evidence fractional interests in the Trust Fund. The Class R Certificates will
be retained by the Company and TMS Special Holdings, Inc. and are not being
delivered to the Underwriters hereunder.
On or prior to the date of issuance of the Certificates, the Company will
obtain from MBIA Insurance Corporation ("MBIA") certificate guaranty insurance
policies (the "MBIA Policies") on behalf of the Trustee for the benefit of the
holders of the Class A Certificates. An election will be made to treat certain
assets of the Trust Fund as a real estate mortgage investment conduit ("REMIC")
within the meaning of Section 860D of the Internal Revenue Code of 1986, as
amended (the "Code").
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement.
Prior to the delivery of the Class A Certificates by the Company, on behalf
of the Originators, and the public offering thereof by the Underwriters, the
Company and the Representative, as representative of the Underwriters, shall
enter into an agreement substantially in the form of Exhibit A hereto (the
"Pricing Agreement"). The Pricing Agreement shall be between the Company and the
Representative, as representative of the Underwriters, and shall specify such
applicable information as is indicated in, and be in substantially the form of,
Exhibit A hereto. The offering of the Class A Certificates will be governed by
this Agreement, as supplemented by the Pricing Agreement. From and after the
date of the execution and delivery of the Pricing Agreement, this Agreement
shall be deemed to incorporate the Pricing Agreement.
The Company and the Originators understand that the Underwriters propose to
make a public offering of the Class A Certificates as soon as the Underwriters
deem advisable after the Pricing Agreement has been executed and delivered.
Section 1. Representations and Warranties of the Company and the
Originators.
(a) The Company and the Originators represent and warrant to each of
the Underwriters as of the date hereof and, if the Pricing Agreement is
executed on a date other than the date hereof, as of the date of the
Pricing Agreement (such latter date being hereinafter referred to as the
"Representation Date") as follows:
(i) The Company, on behalf of the Originators, has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. 33-98734) including a prospectus, and such
amendments thereto as may have been required to the date hereof, relating
to the Class A Certificates and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
"1933 Act"), and such registration statement, as amended, has become
effective. Such registration statement, as amended, and the prospectus
relating to the sale of the Class A Certificates constituting a part
thereof as from time to time amended or supplemented (including any
prospectus supplement (the "Prospectus Supplement") filed with the
Commission pursuant to Rule 424 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations") and any
information incorporated therein by reference) are respectively referred to
herein as the "Registration Statement" and the "Prospectus." The conditions
of Rule 415 under the 1933 Act have been satisfied with respect to the
Company and the Registration Statement.
(ii) At the time the Registration Statement became effective and at
the Representation Date, the Registration Statement complied and will
comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. The Prospectus, at the Representation Date (unless the term
"Prospectus" refers to a prospectus which has been provided to the
Representative, as representative of the Underwriters, by the Company for
use in connection with the offering of the Class A Certificates which
differs from the Prospectus on file at the Commission at the time the
Registration Statement became effective, in which case at the time it is
first provided to the Representative, as representative of the
Underwriters, for such use) and at Closing Time referred to in Section 2
hereof, will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representative expressly for use in the
Registration Statement or Prospectus; and provided further, that neither
the Company nor the Originators make any representations or warranties as
to any information in any Computational Materials (as defined in Section 11
below) provided by any Underwriter to the Company pursuant to Section 11,
except to the extent of any errors in the Computational Materials that are
caused by errors in the pool information provided by the Company to the
applicable Underwriter. The conditions to the use by the Company of a
registration statement on Form S-3 under the 1933 Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus.
(iii) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company, the Originators and their subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of
business, which would have a material adverse effect on the ability of the
Company and the Originators to perform their obligations under the Basic
Documents (as defined below) and, in the case of the Company, the
Indemnification Agreement (as defined below) and (B) there have been no
transactions entered into by the Company or the Originators or any of their
subsidiaries, other than those in the ordinary course of business, which
would have a material adverse effect on the ability of the Company and the
Originators to perform their obligations under this Agreement, the Pricing
Agreement, the Pooling and Servicing Agreement and the Insurance Agreement
dated as of June 27, 1996 among the Company, the Originators, the Trustee
and MBIA (the "Insurance Agreement") (this Agreement, the Pricing
Agreement, the Pooling and Servicing Agreement, and the Insurance Agreement
being herein referred to, collectively, as the "Basic Documents"), the
Indemnification Agreement dated as of September __, 1996 (the
"Indemnification Agreement") among the Company, MBIA and the
Representative, as representative of the Underwriters and the Auction Agent
Agreement dated as of September 27, 1996 (the "Auction Agent Agreement")
between the Trustee and Bankers Trust Company as auction agent.
(iv) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of New Jersey with
all requisite power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter
into and perform its obligations under the Basic Documents and the
Indemnification Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse effect
on, (A) the Company's ability to perform its obligations under the Basic
Documents and the Indemnification Agreement, or (B) the business,
properties, financial position, operations or results of operations of the
Company.
(v) Each Originator has been duly organized and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation with all requisite power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Basic
Documents; and each Originator is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify would not have a material adverse effect on, (A) the
Originator's ability to perform its obligations under the Basic Documents,
or (B) the business, properties, financial position, operations or results
of operations of the Originator.
(vi) Any person who signed this Agreement on behalf of the Company or
the Originators, was, as of the time of such signing and delivery, and is
now duly elected or appointed, qualified and acting, and the Agreement, as
so executed, is duly and validly authorized, executed, and constitutes the
valid, legal and binding agreement of the Company and each Originator,
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(vii) Any person who signs the Indemnification Agreement on behalf of
the Company, will be, as of the time of such signing and delivery, duly
elected or appointed, qualified and acting, and the Indemnification
Agreement, as so executed, will have been duly and validly authorized, and,
when executed, will constitute the valid, legal and binding agreement of
the Company, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(viii) The Pooling and Servicing Agreement and the Insurance Agreement
have been duly and validly authorized by the Company and the Originators
and, when executed and delivered by the Company and the Originators and
duly and validly authorized, executed and delivered by the other parties
thereto, will constitute, the valid and binding agreement of the Company
and the Originators, enforceable in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law; and the
Pooling and Servicing Agreement and the MBIA Policies conform in all
material respects to the statements relating thereto contained in the
Prospectus.
(ix) The Certificates have been duly and validly authorized by the
Company and, when executed and delivered by the Company and authenticated
by the Trustee as specified in the Pooling and Servicing Agreement and, in
the case of the Class A Certificates, delivered to the Underwriters
pursuant to this Agreement, the Certificates will be duly and validly
issued and outstanding and entitled to the benefits of the Pooling and
Servicing Agreement; and the Certificates conform in all material respects
to all statements relating thereto contained in the Prospectus.
(x) Neither the issuance or delivery of the Certificates, nor the
consummation of any other of the transactions herein contemplated or in any
other Basic Document and, in the case of the Company, the Indemnification
Agreement, nor the execution and delivery by the Company and the
Originators of the Basic Documents and, in the case of the Company, the
Indemnification Agreement nor the fulfillment of the terms of the
Certificates or each Basic Document and, in the case of the Company, the
Indemnification Agreement will result in the breach of any term or
provision of the charter or by-laws of the Company and the Originators, and
the Company and the Originators are not in breach or violation of or in
default (nor has an event occurred which with notice or lapse of time or
both would constitute a default) under the terms of (A) any material
obligation, agreement, covenant or condition contained in any material
contract, indenture, loan agreement, note, lease or other material
instrument to which the Company or the Originators are a party or by which
it may be bound, or to which any of the property or assets of the Company
or the Originators are subject, or (B) any law, decree, order, rule or
regulation applicable to the Company and the Originators of any court or
supervisory, regulatory, administrative or governmental agency, body or
authority, or arbitrator having jurisdiction over the Company or the
Originators or their properties, the default in or the breach or violation
of which would have a material adverse effect on the Company or the
Originators or the ability of the Company and the Originators to perform
their obligations under the Basic Documents and, in the case of the
Company, the Indemnification Agreement; and neither the issuance or
delivery of the Certificates, nor the consummation of any other of the
transactions herein contemplated, nor the fulfillment of the terms of the
Certificates or the Basic Documents and, in the case of the Company, the
Indemnification Agreement will result in such a breach, violation or
default which would have such a material adverse effect.
(xi) Except as described in the Prospectus, there is no action, suit
or proceeding against or investigation of the Company or any Originator,
now pending, or, to the knowledge of the Company and the Originators,
threatened against the Company or any Originator, before any court,
governmental agency or body (A) which is required to be disclosed in the
Prospectus (other than as disclosed therein) or (B) (1) asserting the
invalidity of any Basic Document, the Indemnification Agreement or the
Certificates, (2) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by the Basic
Documents, (3) which would materially and adversely affect the performance
by the Company or any Originator of its obligations under the Basic
Documents, or the validity or enforceability of any Basic Document or the
Certificates and, in the case of the Company, the Indemnification Agreement
or (4) seeking to adversely affect the federal income tax attributes of the
Class A Certificates described in the Prospectus; all pending legal or
governmental proceedings to which the Company or any Originator is a party
or of which any of its property or assets is the subject which are not
described in the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not material
to the Company's or any Originator's ability to perform its obligations
under the Basic Documents and, in the case of the Company, the
Indemnification Agreement.
(xii) The Company and each of the Originators possess such licenses,
certificates, authorities or permits issued by the appropriate state or
federal regulatory agencies or governmental bodies necessary to conduct the
businesses now conducted by them (except where the failure to possess any
such license, certificate, authority or permit would not materially and
adversely affect the holders of the Class A Certificates) and neither the
Company nor any of the Originators has received any notice of proceedings
relating to the revocation or modification of any such license,
certificate, authority or permit which, singly or in the aggregate, if the
subject of any unfavorable decision, ruling or finding, would materially
and adversely affect the ability of the Company to perform its obligations
under the Basic Documents and the Indemnification Agreement.
(xiii) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
issuance or sale of the Class A Certificates hereunder, except such as have
been obtained or will be obtained prior to the Closing Date and except as
may be required under state securities laws.
(xiv) At the time of execution and delivery of the Pooling and
Servicing Agreement by the Company, the Originators and the Trustee, the
Trustee (or, with respect to the Pool III Home Improvement Loans, the
Co-Trustee) will have acquired good title on behalf of the Trust Fund to
the related Loans, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, and, upon delivery to the
Underwriters of the Class A Certificates which they purchase, the
Underwriters will have good and marketable title to such Class A
Certificates free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(xv) The transfer of the Loans to the Trust Fund at Closing Time will
be treated by the Company and the Originators for financial accounting and
reporting purposes as a sale of assets and not as a pledge of assets to
secure debt.
(xvi) Each assignment of Mortgage required to be prepared pursuant to
the Pooling and Servicing Agreement is based on forms recently utilized by
the applicable Originator with respect to mortgaged properties located in
the appropriate jurisdiction and used in the regular course of the
applicable Originator's business. Upon execution each such assignment will
be in recordable form, and it is reasonable to believe that it will be
sufficient to effect the assignment of the Mortgage to which it relates as
provided in the Pooling and Servicing Agreement.
(xvii) Any taxes, fees and other governmental charges that are
assessed and due in connection with the execution, delivery and issuance of
the Basic Documents, the Indemnification Agreement and the Class A
Certificates which have become due or will become due on or prior to
Closing Time shall have been paid at or prior to Closing Time.
(xviii) The Trust Fund is not required to be registered as an
"investment company" under the Investment Company Act of 1940 (the
"1940 Act").
(b) Any certificate signed by any officer of the Company or any Originator
and delivered to the Representative, as representative of the Underwriters, or
counsel for the Underwriters shall be deemed a representation and warranty by
the Company and such Originator as to the matters covered thereby.
Section 2. Delivery to the Underwriters; Closing.
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company, on behalf of
the Originators, agrees to sell to each Underwriter, severally and not jointly,
and each of the Underwriters, severally and not jointly, agrees to purchase from
the Company, the Class A Certificates set forth opposite its name in Annex B
hereto at the price per Class of Class A Certificate set forth below. In the
event that the pass-through rates for each Class of Class A Certificates have
not been agreed upon and the Pricing Agreement has not been executed and
delivered by all parties thereto by the close of business on the fourth business
day following the date of this Agreement, this Agreement shall terminate
forthwith, without liability of any party to any other party, unless otherwise
agreed upon by the Representative, as representative of the Underwriters, and
the Company.
(b) Delivery of the Class A Certificates shall be made at the offices of
Stroock & Stroock & Xxxxx, 0 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place as shall be agreed upon by the Underwriter and the Company, at
11:00 A.M., New York City time, on September 27, 1996, or such other time not
later than ten business days after such date as shall be agreed upon by The
Representative, as representative of the Underwriters, and the Company (such
time and date of payment and delivery being herein called "Closing Time").
Each Class of Class A Certificates will initially be represented by one
certificate registered in the name of Cede & Co., the nominee of The Depository
Trust Company ("DTC") (the "DTC Certificates"). The interests of beneficial
owners of the DTC Certificates will be represented by book entries on the
records of DTC and participating members thereof. Definitive certificates
evidencing the Class A Certificates will be available only under the limited
circumstances specified in the Pooling and Servicing Agreement. The interest in
the DTC Certificates to be purchased by the applicable Underwriter will be
delivered by the Company to the applicable Underwriter (which delivery shall be
made through the facilities of DTC) against payment of the purchase price
therefor by a same day federal funds wire payable to the order of the Company,
equal to the sum of (i) 99.834375% of the aggregate principal amount of the
Class A-1 Certificates being purchased by such Underwriter, plus interest
accrued at the Class A-1 Pass-Through Rate, (ii) 99.800000% of the aggregate
principal amount of the Class A-2 Certificates being purchased by such
Underwriter, plus interest accrued at the Class A-2 Pass-Through Rate, (iii)
99.775000% of the aggregate principal amount of the Class A-3 Certificates being
purchased by such Underwriter, plus interest accrued at the Class A-3
Pass-Through Rate, (iv) 99.688125% of the aggregate principal amount of the
Class A-4 Certificates being purchased by such Underwriter, plus interest
accrued at the Class A-4 Pass-Through Rate, (v) 99.800000% of the aggregate
principal amount of the Class A-5 Certificates being purchased by such
Underwriter, plus interest accrued at the Class A-5 Pass-Through Rate, (vi)
99.684375% of the aggregate principal amount of the Class A-6 Certificates being
purchased by such Underwriter, plus interest accrued at the Class A-6
Pass-Through Rate, (vii) 99.578125% of the aggregate principal amount of the
Class A-7 Certificates being purchased by such Underwriter, plus interest
accrued at the Class A-7 Pass-Through Rate, (viii) 99.800000% of the aggregate
principal amount of the Class X- 0 Certificates being purchased by such
Underwriter, plus interest accrued at the Class A-8 Pass-Through Rate, (ix)
99.750000% of the aggregate principal amount of the Class A-9 Certificates being
purchased by such Underwriter, (x) 00.000000% of the aggregate principal amount
of the Class A-10 Certificates being purchased by such Underwriter, plus
interest accrued at the Class A-10 Pass- Through Rate, (xi) 99.775000% of the
aggregate principal amount of the Class A-11 Certificates being purchased by
such Underwriter, plus interest accrued at the Class A-11 Pass-Through Rate,
(xii) 99.709375% of the aggregate principal amount of the Class A-12
Certificates being purchased by such Underwriter, plus interest accrued at the
Class A-12 Pass-Through Rate, (xiii) 99.643750% of the aggregate principal
amount of the Class A-13 Certificates being purchased by such Underwriter, plus
interest accrued at the Class A-13 Pass-Through Rate, (xiv) 99.593750% of the
aggregate principal amount of the Class A-14 Certificates being purchased by
such Underwriter, plus interest accrued at the Class A-14 Pass-Through Rate and
(xv) 99.625000% of the aggregate principal amount of the Class A-15 Certificates
being purchased by such Underwriter, plus interest accrued at the Class A-15
Pass-Through Rate. With respect to the Class A-1 through Class A-4 Certificates,
inclusive, the Class A-6 Certificates, the Class A-7 Certificates, and the Class
A-11 through Class A-15 Certificates, inclusive, interest shall accrue at the
applicable Pass-Through Rate in each case from September 1, 1996 to, but not
including, the Closing Time. With respect to the Class A-5, Class A-8 and Class
A-10 Certificates, interest shall accrue at the applicable Pass-Through Rate
from September 15, 1996 to, but not including, the Closing Time. With respect to
the Class A-9 Certificates, interest shall accrue at the applicable Pass-Through
Rate from the Closing Time. The purchase price set forth above reflects the
deduction of the underwriter's fee with respect to the principal amount of each
Class of Class A Certificates. The certificates evidencing the Class A
Certificates will be made available for examination and packaging by the
Representative, as representative of the Underwriters, not later than 10:00 A.M.
on the last business day prior to Closing Time.
Section 3. Covenants of the Company and the Originators. The Company and
the Originators covenant with each of the Underwriters as follows:
(a) The Company will promptly notify the Representative, as
representative of the Underwriters, and confirm the notice in writing, (i)
of any amendment to the Registration Statement; (ii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information; (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation or threatening of any
proceedings for that purpose; and (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Class A Certificates for sale in any jurisdiction or the initiation or
threatening of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Company will give the Representative, as representative of the
Underwriters, notice of its intention to file or prepare any amendment to
the Registration Statement or any amendment or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Class A Certificates
which differs from the prospectus on file at the Commission at the time the
Registration Statement becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations), will furnish the Representative, as representative of the
Underwriters, with copies of any such amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case may be,
and, unless required by law to do so, will not file any such amendment or
supplement or use any such prospectus to which The Representative, as
representative of the Underwriters, or counsel for the Underwriters shall
reasonably object.
(c) The Company will deliver to the Representative, as representative
of the Underwriters, as many signed and as many conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(in each case including exhibits filed therewith) as the Representative may
reasonably request.
(d) The Company will furnish to the Representative, as representative
of the Underwriters, from time to time during the period when the
Prospectus is required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934, as amended (the "1934 Act"), such number of copies of
the Prospectus (as amended or supplemented) as the 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, the Company will forthwith amend or supplement the Prospectus
(in form and substance satisfactory to counsel for the Underwriters) so
that, as so amended or supplemented, the Prospectus will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, and the Company will furnish to the Representative, as
representative of the Underwriters, a reasonable number of copies of such
amendment or supplement.
(f) The Company and the Originators will endeavor, in cooperation with
the Representative, as representative of the Underwriters, to qualify the
Class A Certificates for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Representative, as representative of the Underwriters, may designate;
provided, however, that neither the Company nor any Originator shall be
obligated to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. In each jurisdiction in which the Class A
Certificates have been so qualified, the Company and the Originators will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not
less than one year from the date hereof.
(g) The Company and the Originators will file with the Commission such
reports on Form SR as may be required pursuant to Rule 463 under the 1933
Act.
(h) So long as any Certificates shall be outstanding, the Company and
the Originators will deliver to the Representative, as representative of
the Underwriters, as promptly as practicable, such information concerning
the Company, the Originators or the Certificates as the Representative may
reasonably request from time to time.
Section 4. Payment of Expenses. The Company and the Originators will pay
all expenses incident to the performance of their obligations under this
Agreement, including (i) the printing (or other reproducing) and filing of the
Registration Statement as originally filed and of each amendment thereto (other
than amendments relating to the filing of Computational Materials pursuant to
Section 11); (ii) the reproducing of the Basic Documents and the Indemnification
Agreement; (iii) the preparation, printing, issuance and delivery of the
certificates for the DTC Certificates to the Underwriters; (iv) the fees and
disbursements of (A) the Company's counsel, (B) the Underwriters' counsel, (C)
KPMG Peat Marwick, accountants for the Company and issuer of the comfort letter,
(D) the Trustee and the Co-Trustee and their respective counsel and (E) DTC in
connection with the book-entry registration of the DTC Certificates; (v) the
qualification of the Class A Certificates under state securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey; (vi)
the printing (or other reproducing) and delivery to the Underwriters of copies
of the Registration Statement as originally filed and of each amendment thereto,
of each preliminary prospectus and of the Prospectus and any amendments or
supplements thereto; (vii) the fees charged by each of Xxxxx'x Investors
Service, Inc. ("Moody's") and Standard & Poor's Corporation ("Standard &
Poor's") for rating the Class A Certificates; and (viii) the reproducing and
delivery to the Underwriters of copies of the Blue Sky Survey.
If this Agreement is terminated by the Representative, as representative of
the Underwriters, in accordance with the provisions of Section 5 or Section
9(a)(i) (unless, in the case of Section 9(a)(i), such termination arises from a
change or development involving a prospective change in or affecting the
business or properties of MBIA), the Company and the Originators shall reimburse
the Underwriters severally for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
Section 5. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters hereunder are subject, in the Representative's sole discretion,
to the accuracy of the representations and warranties of the Company and the
Originators herein contained, to the performance by the Company and the
Originators of their respective obligations hereunder, and to the following
further conditions:
(a) The Registration Statement shall have become effective and, at
Closing Time, no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. As of the
Closing Time, the Prospectus shall have been filed with the Commission in
accordance with Rule 424 of the 1933 Act Regulations.
(b) At Closing Time, the Representative, as representative of the
Underwriters, shall have received:
(i) The favorable opinion, dated as of Closing Time, of Stroock &
Stroock & Xxxxx, counsel for the Underwriters, to the effect that:
(A) To the best of their knowledge and information, the
Registration Statement is effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(B) At the time the Registration Statement became effective
and at the Representation Date, the Registration Statement (other
than the financial, numerical, statistical and quantitative
information included or incorporated therein, as to which no
opinion need be rendered) complied as to form in all material
respects with the requirements of the 1933 Act and the Rules and
Regulations thereunder.
(C) The information in the Prospectus under "Description of
the Certificates" and "The Agreements" and the information in the
Prospectus Supplement under "Description of the Agreement" and
"Description of The Certificates," insofar as they constitute
summaries of certain provisions of the Certificates, the Pooling
and Servicing Agreement, the Insurance Agreement and the MBIA
Policies, summarizes fairly such provisions.
(D) The information in the Prospectus under "Summary of
Terms -- Federal Income Tax Consequences," "Summary of Terms --
ERISA Considerations," "Certain Legal Aspects of the Mortgage
Loans," "Federal Income Tax Consequences," "ERISA Considerations"
and "Risk Factors -- The Status of the Mortgage Loans in the
Event of Bankruptcy of The Representative or an Originator" and
in the Prospectus Supplement under "Summary of Terms -- REMIC
Election and Tax Status," "Summary of Terms -- ERISA
Considerations," "Federal Income Tax Consequences," and "ERISA
Considerations," to the extent that they constitute matters of
federal, New York or California law, summaries of legal matters,
documents or proceedings or legal conclusions, has been reviewed
by them and is correct in all material respects.
(E) TMS Special Holdings, Inc. has been duly incorporated
and is validly existing and in good standing under the laws of
the State of Delaware. TMS Mortgage Inc. is qualified to transact
business as a foreign corporation in, and is in good standing
under the laws of, the States of California, Florida and New
York.
(F) Assuming due authorization, execution and delivery by
the other parties thereto (including but not limited to the
Originators), the Pooling and Servicing Agreement, the
Certificates, the Insurance Agreement, the Indemnification
Agreement, the Pricing Agreement and this Agreement are legal,
valid and binding agreements enforceable in accordance with their
respective terms against the Company, subject (a) to the effect
of bankruptcy, insolvency, reorganization, moratorium and similar
laws relating to or affecting creditors' rights generally and
court decisions with respect thereto, (b) to the understanding
that no opinion is expressed as to the application of equitable
principles in any proceeding, whether at law or in equity, and
(c) to limitations of public policy under applicable securities
laws as to rights of indemnity and contribution thereunder.
(G) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Company of, or
compliance by the Company with, this Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement, the Pricing
Agreement and the Indemnification Agreement or the offer,
issuance, sale or delivery of the Certificates, or the
consummation of any other transactions by the Company
contemplated by this Agreement, the Insurance Agreement, the
Pooling and Servicing Agreement, the Pricing Agreement and the
Indemnification Agreement, except as may be required under the
blue sky laws of any jurisdiction (as to which such counsel need
not opine) and such other approvals as have been obtained.
(H) Neither the consummation of the transactions
contemplated by, nor the fulfillment of the terms of, this
Agreement, the Pooling and Servicing Agreement, the Insurance
Agreement, the Pricing Agreement, the Indemnification Agreement
and the Certificates, conflicts or will conflict with or results
or will result in a breach of or constitutes or will constitute a
default under (a) the terms of any material indenture or other
material agreement or instrument of which counsel has knowledge
to which the Company is a party or by which it is bound or to
which it is subject or (b) any statute or order, rule,
regulation, writ, injunction or decree of which counsel has
knowledge of any court, governmental authority or regulatory body
to which the Company is subject or by which it is bound.
(I) The delivery of each Mortgage Note and Mortgage by an
Originator as and in the manner contemplated by the Underwriting
Agreement and the Pooling and Servicing Agreement is sufficient
fully to transfer to the Trustee (or, with respect to the Pool
III Home Improvement Loans, the Co-Trustee) for the benefit of
the Certificateholders all right, title and interest of the
applicable Originator in and to each such Loan including, without
limitation, the right to enforce each such Loan in accordance
with its terms to the extent enforceable by the related
Originator at the time of such delivery. With respect to the
transfer of the Loans by the Originators, such counsel shall
express no opinion as to (i) whether the laws of the State of New
York would apply to the transfer of the related Mortgages or (ii)
the effectiveness of the transfer of the Mortgages under the laws
of the jurisdictions in which such Originators are located (other
than Mortgages relating to Mortgaged Properties situated in
California, Florida or New York) or in which the Mortgaged
Properties are situated (other than Mortgaged Properties situated
in California, Florida or New York) or the right of the Trustee
and the Co-Trustee to enforce such Mortgages.
(J) The Certificates, assuming due execution by the Company,
due authorization by the Trustee and delivery and payment
therefore pursuant to the Underwriting Agreement, will be validly
issued and outstanding and entitled to the benefits of the
Pooling and Servicing Agreement.
(K) Assuming compliance with all provisions of the Pooling
and Servicing Agreement, for federal income tax purposes, the
REMIC Trust Fund will qualify as a REMIC and the Class A
Certificates and Class R Certificates offered with respect
thereto will be considered to evidence ownership of "regular
interests" or "residual interests," respectively, in the REMIC
Trust Fund within the meaning of the REMIC Provisions. Assuming
compliance with all provisions of the Pooling and Servicing
Agreement, for New York State and City tax purposes, the REMIC
Trust Fund will be classified as a REMIC and not as a
corporation, partnership or trust, in conformity with the federal
income tax treatment of such assets. Accordingly, the REMIC will
be exempt from all New York State and City taxation imposed upon
its income, franchise or capital stock. Additionally, the REMIC
will be exempt from all State of California taxation imposed upon
its income, franchise or capital stock, other than the
application of the annual minimum tax under Section 23153 of the
California Revenue and Taxation Code.
(L) A Class A Certificate owned by a "domestic building and
loan association" within the meaning of Section 7701(a)(19) of
the Code will be considered in its entirety to represent an
interest in qualified assets within the meaning of Section
7701(a)(19)(C)(xi) of the Code so long as at least 95% of the
REMIC Trust Fund's assets consist of assets described in Section
7701(a)(19)(C)(i) through (x) of the Code. If less than 95% of
the REMIC Trust Fund's assets consist of such items, a Class A
Certificate will be considered qualified assets in the same
proportion as the REMIC Trust Fund's assets which are such items.
A Class A Certificate owned by a real estate investment trust
will be considered in its entirety an interest in "real estate
assets" within the meaning of Section 856(c)(5)(A) of the Code
and interest thereon will be considered in its entirety "interest
on obligations secured by mortgages on real property" within the
meaning of Section 856(c)(3)(B) of the Code in both cases so long
as at least 95% of the REMIC Trust Fund's assets are "real estate
assets" as defined in Section 856(c)(3)(B) of the Code. If less
than 95% of the REMIC Trust Fund's assets are "real estate
assets," a Class A Certificate will be considered "real estate
assets" and the interest thereon will be considered "interest on
obligations secured by mortgages on real property" in the same
proportion as the REMIC Trust Fund's assets which are "real
estate assets." A Class A Certificate will not be considered
"residential loans" for purposes of the residential loan
requirement of Section 593(g)(4)(B) of the Code. A Class A
Certificate held by another REMIC will be a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code, assuming it
is transferred to the REMIC on its startup day in exchange for
regular or residual interests in such REMIC.
(M) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended.
The Trust Fund created by the Pooling and Servicing Agreement is
not required to be registered under the Investment Company Act of
1940, as amended.
In rendering such opinion, Stroock & Stroock & Xxxxx may rely on
certificates of responsible officers of the Company, the Trustee, the
Co-Trustee, and public officials or, as to matters of law other than New York,
Florida, California or Federal law, on opinions of other counsel (copies of
which opinions shall be delivered to you and upon which you may rely).
(ii) The favorable opinion, dated as of Closing Time, of
counsel for the Company and the Originators, in form and
substance satisfactory to counsel for the Underwriters, to the
effect that:
(A) The Company has been duly organized and is validly
existing and is in good standing under the laws of the State of
New Jersey. Each Originator has been duly organized under the
laws of its jurisdiction of incorporation and is qualified to
transact business in the laws of the states in which the
Mortgaged Properties underlying the Loans originated by each such
Originator are located or is otherwise exempt under applicable
law from such qualification. TMS Special Holdings, Inc. has been
duly organized and is validly existing and in good standing under
the laws of the State of Delaware.
(B) The Company and each of the Originators have the power
to engage in the transactions contemplated by this Agreement, the
Pooling and Servicing Agreement, the Insurance Agreement and, in
the case of the Company, the Pricing Agreement, the
Indemnification Agreement, the Auction Agent Agreement and the
Certificates, and have all requisite power, authority and legal
right to execute and deliver this Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement, and, in the case of
the Company, the Pricing Agreement, the Indemnification
Agreement, the Auction Agent Agreement and the Certificates (and
any other documents delivered in connection therewith) and to
perform and observe the terms and conditions of such instruments.
(C) This Agreement, the Pooling and Servicing Agreement, the
Insurance Agreement, the Pricing Agreement, the Indemnification
Agreement, and the Certificates each have been duly authorized,
executed and delivered by the Company; this Agreement, the
Pooling and Servicing Agreement and the Insurance Agreement each
have been duly authorized, executed and delivered by each
Originator and, assuming due authorization, execution and
delivery by the other parties thereto, are legal, valid and
binding agreements of the Company and each Originator, as the
case may be, and assuming such agreements were governed by the
laws of the State of New Jersey, would be enforceable in
accordance with their respective terms against the Company and
each Originator, as the case may be, subject (a) to the effect of
bankruptcy, insolvency, reorganization, moratorium and similar
laws relating to or affecting creditors' rights generally and
court decisions with respect thereto, (b) to the understanding
that no opinion is expressed as to the application of equitable
principles in any proceeding, whether at law or in equity, and
(c) to limitations of public policy under applicable securities
laws as to rights of indemnity and contribution thereunder.
(D) Neither the transfer of the Loans to the Trust Fund, the
consummation of the transactions contemplated by, nor the
fulfillment of the terms of, this Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement, or in the case of
the Company, the Pricing Agreement, the Indemnification Agreement
and the Certificates, (A) conflicts or will conflict with or
results or will result in a breach of or constitutes or will
constitute a default under the Certificates of Incorporation or
Bylaws of the Company or any Originator, or the terms of any
material indenture or other material agreement or instrument of
which such counsel has knowledge to which the Company or any
Originator are a party or by which it is bound or to which it is
subject, or (B) results in, or will result in the creation or
imposition of any lien or encumbrance upon the Trust Fund or upon
the related Certificates, except as otherwise contemplated by the
Pooling and Servicing Agreement, or (C) any statute or order,
rule, regulations, writ, injunction or decree of any court,
governmental authority or regulatory body to which the Company or
any Originator is subject or to which it is bound.
(E) Except as set forth in the Prospectus Supplement, there
is no action, suit, proceeding or investigation pending or, to
the best of such counsel's knowledge, threatened against the
Company or any Originator which, in such counsel's judgment,
either in any one instance or in the aggregate, may result in any
material adverse change in the business, operation, financial
condition, properties or assets of the Company or an Originator
or in any material impairment of the right or ability of the
Company or any Originator to carry on its business substantially
as now conducted or result in any material liability on the part
of the Company or any Originator or which would draw into
question the validity of this Agreement, the Pricing Agreement,
the Certificates, the Insurance Agreement, the Indemnification
Agreement or the Pooling and Servicing Agreement or of any action
taken or to be taken in connection with the transactions
contemplated thereby, or which would be likely to impair
materially the ability of the Company or any Originator to
perform under the terms of this Agreement, the Insurance
Agreement or the Pooling and Servicing Agreement, or in the case
of the Company, the Pricing Agreement, the Indemnification
Agreement or the Certificates.
(F) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Company and each
Originator of, or compliance by the Company and each Originator
with, this Agreement, the Pooling and Servicing Agreement, the
Insurance Agreement or, in the case of the Company, the Pricing
Agreement, the Indemnification Agreement or the Certificates, or
the consummation of the transactions contemplated therein, except
such as may be required under the blue sky laws of any
jurisdiction and such other approvals as have been obtained.
(G) The delivery by TMS Mortgage Inc. ("TMS") of each
Mortgage Note and Mortgage secured by real property located in
New Jersey as and in the manner contemplated by the Pooling and
Servicing Agreement is sufficient fully to transfer to the
Trustee (or, with respect to the Pool III Home Improvement Loans,
the Co-Trustee) for the benefit of the Certificateholders all
right, title and interest of TMS in and to each such Loan
including, without limitation, the right to enforce each such
Loan in accordance with its terms to the extent enforceable by
TMS at the time of such delivery.
(iii) The favorable opinion, dated as of Closing Time, of
Xxxxx Xxxx, counsel for MBIA, in form and substance satisfactory
to counsel for the Underwriters, to the effect that:
(A) MBIA is a stock insurance corporation, duly incorporated
and validly existing under the laws of the State of New York.
MBIA is validly licensed and authorized to issue the MBIA
Policies and perform its obligations under the MBIA Policies in
accordance with the terms thereof, under the laws of the State of
New York.
(B) The execution and delivery by MBIA of the MBIA Policies,
the Insurance Agreement and the Indemnification Agreement are
within the corporate power of MBIA and have been authorized by
all necessary corporate action on the part of MBIA; the MBIA
Policies have been duly executed and is the valid and binding
obligation of MBIA enforceable in accordance with its terms
except that the enforcement of the MBIA Policies may be limited
by laws relating to bankruptcy, insolvency, reorganization,
moratorium, receivership and other similar laws affecting
creditors' rights generally and by general principles of equity.
(C) MBIA is authorized to deliver the Insurance Agreement
and the Indemnification Agreement, and the Insurance Agreement
and the Indemnification Agreement have been duly executed and are
the valid and binding obligations of MBIA enforceable in
accordance with their respective terms except that the
enforcement of the Insurance Agreement and the Indemnification
Agreement may be limited by laws relating to bankruptcy,
insolvency, reorganization, moratorium, receivership and other
similar laws affecting creditors' rights generally and by general
principles of equity and by public policy considerations relating
to indemnification for securities law violations.
(D) No consent, approval, authorization or order of any
state or federal court or governmental agency or body is required
on the part of MBIA, the lack of which would adversely affect the
validity or enforceability of the MBIA Policies; to the extent
required by applicable legal requirements that would adversely
affect the validity or enforceability of the MBIA Policies, the
form of the MBIA Policies has been filed with, and approved by,
all governmental authorities having jurisdiction over MBIA in
connection with such MBIA Policies.
(E) To the extent the MBIA Policies constitute securities
within the meaning of Section 2(l) of the Securities Act of 1933,
as amended (the "Act"), it is a security that is exempt from the
registration requirements of the Act.
(F) The information set forth under the caption "MBIA
Policies AND MBIA" in the Prospectus Supplement, relating to the
offer and sale of the Class A Certificates, to the Prospectus
forming a part of the Registration Statement on Form S-3 (No.
33-98734) filed by the Company with the Securities and Exchange
Commission and declared effective on March 19, 1996, insofar as
such statements constitute a description of the MBIA Policies,
accurately summarizes the MBIA Policies.
In rendering this opinion, such counsel may rely, as to
matters of fact, on certificates of responsible officers of the
Company, the Trustee, the Co- Trustee, MBIA and public officials.
Such opinion may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by
the parties thereto other than the MBIA.
(iv) The favorable opinion, dated as of Closing Time, of
Xxxxxx, Xxxxxx & Xxxxxx, counsel for the Trustee, in form and
substance satisfactory to counsel for the Underwriters.
(v) The favorable opinion, dated as of Closing Time, of
Xxxxxx & Whitney, counsel for the Co-Trustee and the Custodian,
in form and substance satisfactory to counsel for the
Underwriters.
(vi) In giving its opinion required by subsection (b)(i) of
this Section, Stroock & Stroock & Xxxxx 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 Representative, as representative of the Underwriters, by the
Company for use in connection with the offering of the Class A
Certificates which differs from the Prospectus on file at the
Commission at the Representation Date, in which case at the time
it is first provided to the Representative, as representative of
the Underwriters, for such use) or at Closing Time, included an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading (other than the financial, numerical, statistical and
quantitative information contained therein, the information under
the heading "The MBIA Policies and MBIA" therein, and the
information in the Exhibits thereto, as to which such counsel
need express no view).
(c) At Closing Time, the Representative, as representative
of the Underwriters, shall have received from Stroock & Stroock &
Xxxxx, counsel for the Underwriters, a letter, dated as of
Closing Time, authorizing the Representative, as representative
of the Underwriters, to rely upon each opinion delivered by
Stroock & Stroock & Xxxxx to each of Xxxxx'x and Standard &
Poor's in connection with the issuance of the Certificates as
though each such opinion was addressed to the Representative, as
representative of the Underwriters, and attaching a copy of each
such opinion.
(d) At Closing Time there shall not have been, since the
date hereof or since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and the Originators and their subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business, and the Underwriter shall have received a certificate
signed by one or more duly authorized officers of the Company and
the Originators, dated as of Closing Time, to the effect that (i)
there has been no such material adverse change; (ii) the
representations and warranties in Section 1(a) hereof are true
and correct in all material respects with the same force and
effect as though expressly made at and as of Closing Time; (iii)
the Company and the Originators have complied with all agreements
and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time; and (iv) no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(e) At or before the time of printing of the Prospectus
Supplement, the Representative, as representative of the
Underwriters, shall have received from KPMG Peat Marwick a letter
dated as of Closing Time and in form and substance satisfactory
to the Representative, as representative of the Underwriters, to
the effect that they have carried out certain specified
procedures, not constituting an audit, with respect to (i)
certain amounts, percentages and financial information relating
to the Company's servicing portfolio which are included in the
Prospectus and which are specified by the Representative, as
representative of the Underwriters, and have found such amounts,
percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company
and the Originators identified in such letter, (ii) the
information contained in the weighted average life tables
contained in the Prospectus under the caption "Maturity,
Prepayment and Yield Considerations" and have found such
information to be in agreement with the corresponding information
as computed by KPMG Peat Marwick and (iii) certain information
regarding the Loans and the Files which are specified by the
Representative, as representative of the Underwriters, and
contained in the Current Report on Form 8-K described in Section
5(l) hereof and setting forth the results of such specified
procedures.
Notwithstanding the foregoing, if the letter delivered by KPMG Peat Marwick
at Closing Time does not cover the information set forth in subclause (iii), the
Company shall cause KPMG Peat Marwick to deliver to the Representative, as
representative of the Underwriters, an additional letter covering such
information within 5 business days of the Closing Time.
(f) At Closing Time, the Representative, as representative
of the Underwriters, shall have received from each of the Trustee
and the Co-Trustee a certificate signed by one or more duly
authorized officers of the Trustee and the Co-Trustee,
respectively, dated as of Closing Time, as to the due acceptance
of the Pooling and Servicing Agreement by the Trustee and the
Co-Trustee, respectively and the due authentication of the
Certificates by the Trustee and the Co- Trustee, respectively and
such other matters as the Representative, as representative of
the Underwriters, shall request.
(g) At Closing Time, the Representative, as representative
of the Underwriters, shall have received a certificate signed by
one or more duly authorized officers of MBIA, dated as of Closing
Time, to the effect that the information contained under the
caption "The MBIA Policies and MBIA" in the Prospectus and in the
Exhibits A and B to the Prospectus is true and accurate in all
material respects and such other matters as the Representative,
as representative of the Underwriters, shall request.
(h) At Closing Time, the Representative, as representative
of the Underwriters, shall have received a certificate signed by
one or more duly authorized officers of the Company and the
Originators, dated as of Closing Time to the effect that:
(i) the representations and warranties of the Company
and the Originators in the Pooling and Servicing Agreement
are true and correct in all material respects at and on the
Closing Date, with the same effect as if made on the Closing
Date;
(ii) the Company and the Originators have complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied in connection with the sale and delivery
of the Certificates;
(iii) all statements and information contained in the
Prospectus Supplement under the captions "The Representative
and the Originators" and "The Loans" and in the Prospectus
under the captions "The Representative and the Originators"
and "Lending Programs" are true and accurate in all material
respects and nothing has come to such officer's attention
that would lead him to believe that any of the specified
sections contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make
the statements and information therein, in the light of the
circumstances under which they were made, not misleading;
(iv) the information set forth in the Schedule of Loans
required to be furnished pursuant to the Pooling and
Servicing Agreement is true and correct in all material
respects and the Loans actually being delivered to the
Trustee and the Co-Trustee at Closing Time conform in all
material respects to the Pool information set forth in the
Prospectus Supplement;
(v) the copies of the Charter and By-laws of the
Company and the Originators attached to such certificate are
true and correct and, are in full force and effect on the
date thereof;
(vi) except as may otherwise be disclosed in the
Prospectus, there are no actions, suits or proceedings
pending (nor, to the best knowledge of such officers, are
any actions, suits or proceedings threatened), against or
affecting the Company or any Originator which if adversely
determined, individually or in the aggregate, would
adversely affect the Company's or such Originator's
obligations under the Pooling and Servicing Agreement, the
Indemnification Agreement, the Insurance Agreement, the
Pricing Agreement or this Agreement;
(vii) each person who, as an officer or representative
of the Company or of any Originator, signed (a) this
Agreement, (b) the Pooling and Servicing Agreement, (c) the
Certificates issued thereunder, (d) the Insurance Agreement
(e) the Indemnification Agreement or (f) any other document
delivered prior hereto or on the date hereof in connection
with the purchase described in this Agreement and the
Pooling and Servicing Agreement, was, at the respective
times of such signing and delivery, and is now duly elected
or appointed, qualified and acting as such officer or
representative;
(viii) a certified true copy of the resolutions of the
board of directors of the Company and the Originators with
respect to the sale of the Class A Certificates subject to
this Agreement and the Pooling and Servicing Agreement,
which resolutions have not been amended and remain in full
force and effect;
(ix) all payments received with respect to the Loans
after the Cut-Off Date have been deposited in the Principal
and Interest Account, and are, as of the Closing Date, in
the Principal and Interest Account;
(x) the Company has complied, and has ensured that the
Originators have complied, with all the agreements and
satisfied, and has ensured that the Originators have
satisfied, all the conditions on its, and the Originators',
part to be performed or satisfied in connection with the
issuance, sale and delivery of the Loans and the
Certificates;
(xi) all statements contained in the Prospectus with
respect to the Company and the Originators are true and
accurate in all material respects and nothing has come to
such officer's attention that would lead such officer to
believe that the Prospectus contains any untrue statement of
a material fact or omits to state any material fact;
(xii) each Mortgage assignment will be prepared based
on forms recently utilized by the Company with respect to
mortgaged properties located in the appropriate jurisdiction
and used in the regular course of the Company's business.
Based on the Company's experience with such matters, the
Company reasonably believes that upon execution each such
assignment will be in recordable form and will be sufficient
to effect the assignment of the Mortgage to which it relates
as provided in the Pooling and Servicing Agreement; and
(xiii) the weighted average lives of the Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A- 6,
Class A-7, Class A-8, Class A-9, Class A-10, Class X- 00,
Class A-12, Class A-13, Class A-14 and Class A-15
Certificates, in each case using the applicable pricing
speed and a weighted average coupon (or, in the case of the
Pool II Home Equity Loans, the weighted average margin) and
weighted average maturity based upon the Loans actually
delivered to the Trustee and the Co- Trustee, will not vary
by more than 1/10th of one year from 0.90 years, 2.00 years,
3.10 years, 5.00 years, 1.96 years, 7.00 years, 11.00 years,
2.10 years, 8.42 years, 1.00 years, 3.00 years, 5.00 years,
7.00 years, 11.29 years, and 6.76 years, respectively.
(i) At Closing Time, each Class of the Class A
Certificates shall have been rated "Aaa" by Xxxxx'x and
"AAA" by Standard & Poor's.
(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 Class A
Certificates as herein contemplated and related proceedings,
or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken
by the Company in connection with the issuance and sale of
the Class A Certificates as herein contemplated shall be
satisfactory in form and substance to the Representative, as
representative to the Underwriters, and counsel for the
Underwriters.
(k) On or before the Closing Time the Company and the
Originators shall have delivered to the Trustee (or, with
respect to the Pool III Home Improvement Loans, the Co-
Trustee), to hold in trust for the benefit of the holders of
the Certificates, Pool I and Pool II Home Equity Loans, Pool
III Home Improvement Loans and Pool IV Multifamily Loans (as
defined in the Prospectus) with aggregate outstanding
principal balances as of the Cut-Off Date of at least
$400,000,000, $250,000,000, $180,000,000 and $20,000,000,
respectively. The Company and the Originators shall,
immediately following the sale of the Class A Certificates,
cause to be deposited with the Trustee, for deposit in the
Pre-Funding Account (as defined in the Prospectus
Supplement), cash in an amount equal to the sum of (A) the
excess of (i) the aggregate initial principal balance of the
Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class
A-6 and Class A-7 Certificates (i.e., $500,000,000) over
(ii) the aggregate discounted outstanding principal balances
as of the Cut-Off Date of the Pool I Home Equity Loans
actually delivered to the Trustee, (B) the excess of (i) the
aggregate initial principal balance of the Class A-8 and
Class A-9 Certificates (i.e., $275,000,000) over (ii) the
aggregate outstanding principal balances as of the Cut-Off
Date of the Pool II Home Equity Loans actually delivered to
the Trustee, (C) the excess of (i) the aggregate initial
principal balance of the Class A-10, Class A-11, Class A-12,
Class A-13 and Class A-14 Certificates (i.e., $200,000,000)
over (ii) the aggregate discounted outstanding principal
balances as of the Cut-Off Date of the Pool III Home
Improvement Loans actually delivered to the Trustee and the
Co-Trustee, and (D) the excess of (i) the aggregate initial
principal balance of the Class A-15 Certificates (i.e.,
$25,000,000) over (ii) the aggregate outstanding principal
balances as of the Cut-Off Date of the Pool IV Multifamily
Loans actually delivered to the Trustee.
(l) On or before the Closing Time the Company shall
have delivered to the Representative a Current Report on
Form 8-K containing a detailed description of the Loans
actually being delivered to the Trustee and the Co-Trustee
at Closing Time, in form and substance satisfactory to the
Representative.
(m) On or before the Closing Time the Company shall
have delivered to the Representative confirmation from the
Federal Housing Administration (the "FHA") that the FHA
insurance reserves relating to the FHA Loans have been or
will be transferred to the Co-Trustee.
If any condition specified in this Section shall not
have been fulfilled when and as requiredI to be fulfilled,
this Agreement may be terminated by the Representative, as
representative to the Underwriters, by notice to the Company
at any time at or prior to Closing time, and such
termination shall be without liability of any party to any
other party except as provided in Section 4 hereof.
Section 6. Indemnification.
(a) The Company and the Originators jointly and severally agree to
indemnify and hold harmless each of the Underwriters and each person, if any,
who controls each of the Underwriters within the meaning of Section 15 of the
1933 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever
based upon any untrue statement or omission described in
clause (i) above, or any such alleged untrue statement or
omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the
reasonable fees and disbursements of counsel chosen by such
Underwriter), reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any untrue statement or omission described in clause
(i) above, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with the information referred to in clauses (x),
(y) and (z) of the immediately following paragraph; provided, further, such
indemnity with respect to the Prospectus or any preliminary prospectus shall not
inure to the benefit of any Underwriter (or person controlling such Underwriter)
from whom the person suffering any such loss, claim, damage or liability
purchased the Class A Certificates which are the subject thereof if such person
did not receive a copy of the Prospectus at or prior to the confirmation of the
sale of such Class A Certificates to such person in any case where such delivery
is required by the 1933 Act and the untrue statement or omission of a material
fact contained in any preliminary prospectus was corrected in the Prospectus.
(b) Each Underwriter agrees to indemnify and hold harmless the Company and
the Originators, their directors, each of the Company's and Originator's
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, contained in (x) the second sentence of the third paragraph on the
third page which is located on the inside cover (discussing the risk of a lack
of secondary trading) of the Prospectus, (y) the second and third paragraphs
under the heading "Underwriting" in the Prospectus (or any amendment or
supplement thereto) and (z) any Computational Materials prepared by such
Underwriter, except to the extent of any errors in the Computational Materials
that are caused by errors in the pool information provided by the Company to the
applicable Underwriter. The parties hereto agree that no Underwriter shall be
under any liability to the Company, the Originators or any other person
identified in this paragraph (b) for Computational Materials prepared by any
other Underwriter.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve the
indemnifying party from any liability that it may have to any indemnified party
except to the extent that it has been prejudiced in any material respect by such
failure or from any liability that it may have otherwise than under this Section
6. In case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses other than the reasonable costs of investigation subsequently
incurred in connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence, (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii). After such notice from the indemnifying party to
such indemnified party, the indemnifying party will not be liable for the costs
and expenses of any settlement of such action effected by such indemnified party
without the consent of the indemnifying party.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Originators jointly and severally, on the one hand, and the Underwriters, on the
other hand, shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Originators jointly and severally, on the one
hand, and the Underwriters, on the other hand, as incurred, in such proportions
that each Underwriter is responsible for that portion represented by the
underwriting discount allocated to the principal amount of Class A Certificates
set forth next to each Underwriter's name on Annex B hereto (or, with respect to
Computational Materials furnished by an Underwriter (except to the extent of any
errors in the Computational Materials that are caused by errors in the pool
information provided by the Company to the applicable Underwriter), the excess
of the principal amount of Class A Certificates set forth next to such
Underwriter's name on Annex B hereto over the underwriting discount allocated to
such principal amount of Class A Certificates), and the Company and the
Originators shall be responsible for the balance; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. Notwithstanding the provisions
of this Section 7, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Class A Certificates
set forth next to the name of such Underwriter on Annex B hereto were offered to
the public exceeds the amount of any damages such Underwriter has otherwise been
required to pay in respect of such losses, liabilities, claims, damages and
expenses. For purposes of this Section 7, each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Underwriter and each respective director of the
Company and the Originators, each officer of the Company and the Originators who
signed the Registration Statement, and each respective person, if any, who
controls the Company and the Originators within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company and the
Originators.
Section 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement and
the Pricing Agreement, or contained in certificates of officers of the Company
and the Originators submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any of the Underwriters or any controlling person thereof, or by or on behalf of
the Company and the Originators, and shall survive delivery of the Class A
Certificates to the Underwriter.
Section 9. Termination of Agreement.
(a) The Representative, as representative of the Underwriters, may
terminate this Agreement, by notice to the Company and the Originators, at any
time at or prior to Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Registration Statement or Prospectus, any change, or
any development involving a prospective change, in or affecting particularly the
business or properties of the Company and the Originators considered as one
entity or MBIA which, in the reasonable judgment of the Representative, as
representative of the Underwriters, materially impairs the investment quality of
the Class A Certificates; (ii) if there has occurred any downgrading in the
rating of the debt securities of MBIA by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the 0000 Xxx)
which, in the reasonable judgment of the Representative, as representative of
the Underwriters, materially impairs the investment quality or marketability of
the Class A Certificates or if any debt security of MBIA has been put on the
"watch list" of any such rating organization with negative implications; (iii)
if there has occurred any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange or by any governmental authority; (iv) if any banking
moratorium has been declared by Federal or New York authorities; or (v) if there
has occurred any outbreak or escalation of major hostilities in which the United
States of America is involved, any declaration of war by Congress, or any other
substantial national or international calamity or emergency if, in the judgment
of the Representative, as representative of the Underwriter, the effects of any
such outbreak, escalation, declaration, calamity, or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and payment
for the Class A Certificates.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof.
Section 10. Default by One of the Underwriters. If any of the Underwriters
shall fail at Closing Time to purchase the Class A Certificates which it is
obligated to purchase hereunder (the "Defaulted Certificates"), the remaining
Underwriters (the "Non-Defaulting Underwriters") shall have the right, but not
the obligation, within one (1) Business Day thereafter, to make arrangements to
purchase all, but not less than all, of the Defaulted Certificates upon the
terms herein set forth; if, however, the Non-Defaulting Underwriters shall have
not completed such arrangements within such one (1) Business Day period, then
this Agreement shall terminate without liability on the part of the
Non-Defaulting Underwriters.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Non-Defaulting Underwriters or the Company shall have
the right to postpone Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
Section 11. Computational Materials. (a) It is understood that any
Underwriter may prepare and provide to prospective investors certain
Computational Materials (as defined below) in connection with the Company's
offering of the Class A Certificates, subject to the following conditions:
(i) Each Underwriter shall comply with all applicable laws and regulations
in connection with the use of Computational Materials including the No-Action
Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx Acceptance
Corporation I, Xxxxxx, Peabody & Co. Incorporated and Xxxxxx Structured Asset
Corporation, as made applicable to other issuers and underwriters by the
Commission in response to the request of the Public Securities Association dated
May 24, 1994, and the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (collectively, the "Xxxxxx/PSA
Letters").
(ii) As used herein, "Computational Materials" and the term "ABS Term
Sheets" shall have the meanings given such terms in the Xxxxxx/PSA Letters, but
shall include only those Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of an Underwriter.
(iii) Each Underwriter shall provide the Company with representative forms
of all Computational Materials prior to their first use, to the extent such
forms have not previously been approved by the Company for use by such
Underwriter. The Underwriter shall provide to the Company, for filing on Form
8-K as provided in Section 11(b), copies of all Computational Materials that are
to be filed with the Commission pursuant to the Xxxxxx/PSA Letters. The
Underwriter may provide copies of the foregoing in a consolidated or aggregated
form. All Computational Materials described in this subsection (a)(iii) must be
provided to the Company not later than 10:00 a.m. New York time one business day
before filing thereof is required pursuant to the terms of this Agreement.
(iv) If an Underwriter does not provide any Computational Materials to the
Company pursuant to subsection (a)(iii) above, such Underwriter shall be deemed
to have represented, as of the Closing Date, that it did not provide any
prospective investors with any information in written or electronic form in
connection with the offering of the Certificates that is required to be filed
with the Commission in accordance with the Xxxxxx/PSA Letters.
(v) In the event of any delay in the delivery by any Underwriter to the
Company of all Computational Materials required to be delivered in accordance
with subsection (a)(iii) above, the Company shall have the right to delay the
release of the Prospectus to investors or to any Underwriter, to delay the
Closing Date and to take other appropriate actions in each case as necessary in
order to allow the Company to comply with its agreement set forth in Section
11(b) to file the Computational Materials by the time specified therein.
(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 12. Notices. All notices and other communi- cations hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Prudential Securities Incorporated, as
representative of the Underwriters, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Asset Finance (Fax: 000-000-0000); and notices to the Company
or any Originator shall be directed to it at 0000 Xxxxxx Xxxxxx, Xxxxx, Xxx
Xxxxxx 00000, Attention: Executive Vice President.
Section 13. Parties. This Agreement and the Pricing Agreement shall each
inure to the benefit of and be binding upon the Underwriters, the Company, the
Originators and their respective successors. Nothing expressed or mentioned in
this Agreement or the Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters, the Company,
the Originators and their respective successors and the controlling persons and
officers and directors referred to in Section 6 and 7 hereof and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
with respect to this Agreement or the Pricing Agreement or any provision herein
or therein contained. This Agreement and the Pricing Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company, the Originators and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Class A Certificates from the
Underwriter shall be deemed to be a successor by reason merely of such purchase.
The Company and the Originators shall be jointly and severally liable for all
obligations incurred under this Agreement and the Pricing Agreement.
Section 14. Governing Law and Time. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Unless otherwise set forth herein, specified times of day refer to New
York time.
Section 15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among each of the Underwriters and the Company in accordance with its
terms.
Very truly yours,
THE MONEY STORE INC.
By: /s/ Xxxxxx Dear
Name: Xxxxxx Dear
Title: Executive Vice President
THE ORIGINATORS LISTED ON
ANNEX A HERETO
By: /s/ Xxxxxx Dear
Name: Xxxxxx Dear
Title: Executive Vice President
CONFIRMED AND ACCEPTED, as of
the date first above written:
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
Acting on behalf of itself
and as the representative of
the Underwriters.
ANNEX A
The Money Store/Minnesota Inc.
The Money Store/D.C. Inc.
The Money Store/Kentucky Inc.
The Money Store Home Equity Corp.
TMS Mortgage Inc.
ANNEX B
Prudential
Securities Xxxxxx Brothers Bear, Xxxxxxx
Incorporated Inc. & Co. Inc. Xxxxx Xxxxxx Total
------------ ---- ---------- ------------ -----
Class A-1 $ 54,177,000 $ 32,209,000 $ 26,968,000 $ 11,484,000 $ 124,838,000
Class A-2 $ 13,732,000 $ 7,629,000 $ 6,103,000 $ 3,052,000 $ 30,516,000
Class A-3 $ 38,106,000 $ 19,170,000 $ 15,436,000 $ 3,968,000 $ 76,680,000
Class A-4 $ 27,443,000 $ 13,691,000 $ 10,753,000 $ 2,876,000 $ 54,763,000
Class A-5 $ 58,675,000 $ 29,375,000 $ 23,300,000 $ 6,150,000 $ 117,500,000
Class A-6 $ 22,335,000 $ 12,130,000 $ 9,704,000 $ 7,352,000 $ 51,521,000
Class A-7 $ 21,882,000 $ 11,046,000 $ 8,836,000 $ 2,418,000 $ 44,182,000
Class A-8 $102,650,000 $ 53,750,000 $ 42,900,000 $ 15,700,000 $ 215,000,000
Class A-9 $ 0 $ 0 $ 0 $ 60,000,000 $ 60,000,000
Class A-10 $ 40,841,000 $ 20,967,000 $ 16,874,000 $ 5,187,000 $ 83,869,000
Class A-11 $ 22,589,000 $ 12,549,000 $ 10,040,000 $ 3,020,000 $ 48,198,000
Class A-12 $ 10,074,000 $ 5,597,000 $ 4,478,000 $ 2,239,000 $ 22,388,000
Class A-13 $ 9,282,0000 $ 5,157,000 $ 4,125,000 $ 2,063,000 $ 20,627,000
Class A-14 $ 11,213,000 $ 6,229,000 $ 4,984,000 $ 2,492,000 $ 24,918,000
Class A-15 $ 11,250,000 $ 6,250,000 $ 5,000,000 $ 2,500,000 $ 25,000,000
------------------------------------------------------------------------------------------------
Total $444,249,000 $235,749,000 $189,501,000 $130,501,000 $1,000,000,000
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