$970,000,000
THE MONEY STORE INC.
The Money Store Home Equity Asset Backed Certificates
Series 1997-B
UNDERWRITING AGREEMENT
June 25, 1997
Prudential Securities Incorporated
as representative of the Underwriters
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Salomon Brothers Inc
as representative of the Underwriters
Xxxxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brother Inc.
Three World Financial Center
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, Salomon Brothers Inc. and Xxxxxx Brothers Inc. (together, the
"Representatives") on behalf of the several Underwriters listed on Annex B
hereto (the "Underwriters"), with respect to the delivery by the Company, on
behalf of the Originators, of certificates entitled "The Money Store Home Equity
Asset Backed Certificates, Series 1997-B, 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 and
Class A-11" (the "Class A Certificates") to be issued pursuant to a Pooling and
Servicing Agreement, to be dated as of May 31, 1997 (the "Pooling and Servicing
Agreement"), among the Company, as Representative and Servicer, 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 three 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") and one pool of multifamily
mortgage loans (the "Pool III 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 and Pool III 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 Home Equity Asset
Backed Certificates, Series 1997-B, Class R-1 and Class R-2" (the "Class R
Certificates"), and "The Money Store Home Equity Asset Backed Certificates,
Series 1997-B, Class X" (the "Class X Certificates" and, together with the Class
A Certificates and Class R Certificates, the "Certificates"). The Certificates
will evidence fractional interests in the Trust Fund. The Class R Certificates
and Class X Certificates will be retained by the Company and TMS Special
Holdings, Inc. and are not being delivered to the Underwriters hereunder.
On or prior to the date of issuance of the Certificates, the Company will
obtain from MBIA Insurance Corporation ("MBIA") certificate guaranty insurance
policies (the "MBIA Policies") on behalf of the Trustee for the benefit of the
holders of the 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 Representatives, as representatives of the Underwriters, shall
enter into an agreement substantially in the form of Exhibit A hereto (the
"Pricing Agreement"). The Pricing Agreement shall be between the Company and the
Representatives, as representatives of the Underwriters, and shall specify such
applicable information as is indicated in, and be in substantially the form of,
Exhibit A hereto. The offering of the 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. 333-20817) 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 Representatives, as representatives 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
Representatives, as representatives of the Underwriters, for such use)
and at Closing Time referred to in Section 2 hereof, will not include
an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the
Registration Statement or Prospectus; and provided further, that
neither the Company nor the Originators make any representations or
warranties as to any information in any Computational Materials (as
defined in Section 11 below) provided by any Underwriter to the
Company pursuant to Section 11, except to the extent of any errors in
the Computational Materials that are caused by errors in the pool
information provided by the Company to the applicable Underwriter. The
conditions to the use by the Company of a registration statement on
Form S-3 under the 1933 Act, as set forth in the General Instructions
to Form S-3, have been satisfied with respect to the Registration
Statement and the Prospectus.
(iii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company, the Originators
and their subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, which would have a
material adverse effect on the ability of the Company and the
Originators to perform their obligations under the Basic Documents (as
defined below) and, in the case of the Company, the Indemnification
Agreement (as defined below) and (B) there have been no transactions
entered into by the Company or the Originators or any of their
subsidiaries, other than those in the ordinary course of business,
which would have a material adverse effect on the ability of the
Company and the Originators to perform their obligations under this
Agreement, the Pricing Agreement, the Pooling and Servicing Agreement
and the Insurance Agreement dated as of June 1, 1997 among the
Company, the Originators, the Trustee and MBIA (the "Insurance
Agreement") (this Agreement, the Pricing Agreement, the Pooling and
Servicing Agreement, and the Insurance Agreement being herein referred
to, collectively, as the "Basic Documents") and the Indemnification
Agreement to be dated as of June 1, 1997 (the "Indemnification
Agreement") among the Company, MBIA and the Representatives, as
representatives of the Underwriters.
(iv) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of New Jersey with all requisite power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the
Basic Documents and the Indemnification Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify would
not have a material adverse effect on, (A) the Company's ability to
perform its obligations under the Basic Documents and the
Indemnification Agreement, or (B) the business, properties, financial
position, operations or results of operations of the Company.
(v) Each Originator has been duly organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation with all requisite power and authority
to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its
obligations under the Basic Documents; and each Originator is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not
have a material adverse effect on, (A) the Originator's ability to
perform its obligations under the Basic Documents, or (B) the
business, properties, financial position, operations or results of
operations of the Originator.
(vi) Any person who signed this Agreement on behalf of the
Company or the Originators, was, as of the time of such signing and
delivery, and is now duly elected or appointed, qualified and acting,
and the Agreement, as so executed, is duly and validly authorized,
executed, and constitutes the valid, legal and binding agreement of
the Company and each Originator, enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(vii) Any person who signs the Indemnification Agreement on
behalf of the Company, will be, as of the time of such signing and
delivery, duly elected or appointed, qualified and acting, and the
Indemnification Agreement, as so executed, will have been duly and
validly authorized, and, when executed, will constitute the valid,
legal and binding agreement of the Company, enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(viii) The Pooling and Servicing Agreement and the Insurance
Agreement have been duly and validly authorized by the Company and the
Originators and, when executed and delivered by the Company and the
Originators and duly and validly authorized, executed and delivered by
the other parties thereto, will constitute, the valid and binding
agreement of the Company and the Originators, enforceable in
accordance with their terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights in general and by
general principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law; and the Pooling and
Servicing Agreement and the MBIA Policies conform in all material
respects to the statements relating thereto contained in the
Prospectus.
(ix) The Certificates have been duly and validly authorized
by the Company and, when executed and delivered by the Company and
authenticated by the Trustee as specified in the Pooling and Servicing
Agreement and, in the case of the 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 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 Representatives, as representatives of the
Underwriters, or counsel for the Underwriters shall be deemed a representation
and warranty by the Company and such Originator as to the matters covered
thereby.
Section 2. DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company,
on behalf of the Originators, agrees to sell to each Underwriter, severally and
not jointly, and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company, the 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 Representatives, as representatives of the Underwriters, and
the Company.
(b) Delivery of the Class A Certificates shall be made at the offices
of Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, or
at such other place as shall be agreed upon by the Underwriter and the Company,
at 11:00 A.M., New York City time, on June 30, 1997, or such other time not
later than ten business days after such date as shall be agreed upon by the
Representatives, as representatives of the Underwriters, and the Company (such
time and date of payment and delivery being herein called "Closing Time").
Each Class of 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) 99.875000% 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) 99.830000% 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)
99.810000% 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) 99.765000% 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) 99.750000% 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)
99.725000% 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) 99.659375% 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) 99.675000% of the aggregate
principal amount of the Class A-8 Certificates being purchased by such
Underwriter, plus interest accrued at the Class A-8 Pass-Through Rate, (ix)
99.775000% of the aggregate principal amount of the Class A-9 Certificates being
purchased by such Underwriter, plus interest accrued at the Class X- 0
Pass-Through Rate, (x) 00.000000% of the aggregate principal amount of the Class
A-10 Certificates being purchased by such Underwriter, and (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.
With respect to the Class A-1 through Class A-8 Certificates, inclusive, and the
Class A-11 Certificates, inclusive, interest shall accrue at the applicable
Pass-Through Rate in each case from June 1, 1997 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 June 15, 1997 to, but not including,
the Closing Time. With respect to the Class A-10 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 Representatives, as representatives 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
Representatives, as representatives of the Underwriters, and confirm
the notice in writing, (i) of any amendment to the Registration
Statement; (ii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any
proceedings for that purpose; and (iv) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the 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 Representatives, as
representatives of the Underwriters, notice of its intention to file or
prepare any amendment to the Registration Statement or any amendment or
supplement to the Prospectus (including any revised prospectus which
the Company proposes for use by the Underwriters in connection with the
offering of the 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 Representatives, as representatives of the Underwriters,
with copies of any such amendment or supplement a reasonable amount of
time prior to such proposed filing or use, as the case may be, and,
unless required by law to do so, will not file any such amendment or
supplement or use any such prospectus to which The Representatives, as
representatives of the Underwriters, or counsel for the Underwriters
shall reasonably object.
(c) The Company will deliver to the Representatives,
as representatives of the Underwriters, as many signed and as many
conformed copies of the Registration Statement as originally filed and
of each amendment thereto (in each case including exhibits filed
therewith) as the Representatives may reasonably request.
(d) The Company will furnish to the Representatives,
as representatives of the Underwriters, from time to time during the
period when the Prospectus is required to be delivered under the 1933
Act or the Securities Exchange Act of 1934, as amended (the "1934
Act"), such number of copies of the Prospectus (as amended or
supplemented) as the Representatives may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it
is necessary, in the reasonable opinion of counsel for the
Underwriters, to amend or supplement the Prospectus in order to make
the Prospectus not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, the Company will
forthwith amend or supplement the Prospectus (in form and substance
satisfactory to counsel for the Underwriters) so that, as so amended or
supplemented, the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances existing
at the time it is delivered to a purchaser, not misleading, and the
Company will furnish to the Representatives, as representatives of the
Underwriters, a reasonable number of copies of such amendment or
supplement.
(f) The Company and the Originators will
endeavor, in cooperation with the Representatives, as
representatives of the Underwriters, to qualify the Class A
Certificates for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Representatives, as representatives of the Underwriters, may designate;
provided, however, that neither the Company nor any Originator shall be
obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified. In each jurisdiction in which the 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 Representatives, as
representatives of the Underwriters, as promptly as practicable, such
information concerning the Company, the Originators or the Certificates
as the Representatives may reasonably request from time to time.
Section 4. PAYMENT OF EXPENSES. The Company and the Originators will
pay all expenses incident to the performance of their obligations under this
Agreement, including (i) the printing (or other reproducing) and filing of the
Registration Statement as originally filed and of each amendment thereto (other
than amendments relating to the filing of Computational Materials pursuant to
Section 11); (ii) the reproducing of the Basic Documents and the Indemnification
Agreement; (iii) the preparation, printing, issuance and delivery of the
certificates for the DTC Certificates to the Underwriters; (iv) the fees and
disbursements of (A) the Company's counsel, (B) the Underwriters' counsel, (C)
KPMG Peat Marwick, accountants for the Company and issuer of the comfort letter,
(D) the Trustee and the Co-Trustee, if applicable, and their respective counsel
and (E) DTC in connection with the book-entry registration of the DTC
Certificates; (v) the qualification of the 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 Rating
Services ("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 Representatives, as
representatives of the Underwriters, in accordance with the provisions of
Section 5 or Section 9(a)(i) (unless, in the case of Section 9(a)(i), such
termination arises from a change or development involving a prospective change
in or affecting the business or properties of MBIA), the Company and the
Originators shall reimburse the Underwriters severally for all of their
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
Section 5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters hereunder are subject, in the Representatives'
sole discretion, to the accuracy of the representations and warranties of the
Company and the Originators herein contained, to the performance by the Company
and the Originators of their respective obligations hereunder, and to the
following further conditions:
(a) The Registration Statement shall have become
effective and, at Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission. As of the Closing Time, the Prospectus shall have been
filed with the Commission in accordance with Rule 424 of the 1933 Act
Regulations.
(b) At Closing Time, the Representatives, as
representatives of the Underwriters, shall have received:
(i) The favorable opinion, dated as of
Closing Time, of Stroock & Stroock & Xxxxx LLP, counsel for
the Underwriters, to the effect that:
(A) To the best of their knowledge and
information, the Registration Statement is effective under the
1933 Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission.
(B) At the time the Registration
Statement became effective and at the Representation Date, the
Registration Statement (other than the financial, numerical,
statistical and quantitative information included or
incorporated therein, as to which no opinion need be rendered)
complied as to form in all material respects with the
requirements of the 1933 Act and the Rules and Regulations
thereunder.
(C) The information in the Prospectus
under "Description of the Certificates" and "The Agreements"
and the information in the Prospectus Supplement under
"Description of the Agreement" and "Description of The
Certificates," insofar as they constitute summaries of certain
provisions of the Certificates, the Pooling and Servicing
Agreement, the Insurance Agreement and the MBIA Policies,
summarizes fairly such provisions.
(D) The information in the Prospectus
under "Summary of Terms -- Federal Income Tax Consequences,"
"Summary of Terms -- ERISA Considerations," "Certain Legal
Aspects of the Mortgage Loans," "Federal Income Tax
Consequences," "ERISA Considerations" and "Risk Factors-The
Status of the Mortgage Loans in the Event of Bankruptcy of The
Representative or an Originator" and in the Prospectus
Supplement under "Summary of Terms-- REMIC Election and Tax
Status," "Summary of Terms--ERISA Considerations," "Federal
Income Tax Consequences," and "ERISA Considerations," to the
extent that they constitute matters of federal, New York or
California law, summaries of legal matters, documents or
proceedings or legal conclusions, has been reviewed by them
and is correct in all material respects.
(E) TMS Special Holdings, Inc. has
been duly incorporated and is validly existing and in
good standing under the laws of the State of Delaware.
TMS Mortgage Inc. is qualified to transact
business as a foreign corporation in, and is in good
standing under the laws of, the States of California,
Florida and New York.
(F) Assuming due authorization,
execution and delivery by the other parties thereto (including
but not limited to the Originators), the Pooling and Servicing
Agreement, the Certificates, the Insurance Agreement, the
Indemnification Agreement, the Pricing Agreement and this
Agreement are legal, valid and binding agreements enforceable
in accordance with their respective terms against the Company,
subject (a) to the effect of bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or
affecting creditors' rights generally and court decisions with
respect thereto, (b) to the understanding that no opinion is
expressed as to the application of equitable principles in any
proceeding, whether at law or in equity, and (c) to
limitations of public policy under applicable securities laws
as to rights of indemnity and contribution thereunder.
(G) No consent, approval,
authorization or order of any court or governmental agency or
body is required for the execution, delivery and performance
by the Company of, or compliance by the Company with, this
Agreement, the Pooling and Servicing Agreement, the Insurance
Agreement, the Pricing Agreement and the Indemnification
Agreement or the offer, issuance, sale or delivery of the
Certificates, or the consummation of any other transactions by
the Company contemplated by this Agreement, the Insurance
Agreement, the Pooling and Servicing Agreement, the Pricing
Agreement and the Indemnification Agreement, except as may be
required under the blue sky laws of any jurisdiction (as to
which such counsel need not opine) and such other approvals as
have been obtained.
(H) Neither the consummation of the
transactions contemplated by, nor the fulfillment of the terms
of, this Agreement, the Pooling and Servicing Agreement, the
Insurance Agreement, the Pricing Agreement, the
Indemnification Agreement and the Certificates, conflicts or
will conflict with or results or will result in a breach of or
constitutes or will constitute a default under (a) the terms
of any material indenture or other material agreement or
instrument of which counsel has knowledge to which the Company
is a party or by which it is bound or to which it is subject
or (b) any statute or order, rule, regulation, writ,
injunction or decree of which counsel has knowledge of any
court, governmental authority or regulatory body to which the
Company is subject or by which it is bound.
(I) The delivery of each Mortgage Note
and Mortgage by an Originator as and in the manner
contemplated by the Underwriting Agreement and the Pooling and
Servicing Agreement is sufficient fully to transfer to the
Trustee 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 to enforce such Mortgages.
(J) The Certificates, assuming due
execution by the Company, due authorization by the Trustee and
delivery and payment therefore pursuant to the Underwriting
Agreement, will be validly issued and outstanding and entitled
to the benefits of the Pooling and Servicing Agreement.
(K) Assuming compliance with all
provisions of the Pooling and Servicing Agreement, for federal
income tax purposes, each of REMIC I and REMIC II will qualify
as a REMIC, the Class A Certificates and the Class X
Certificates will constitute "regular interests" in REMIC I
and the Class R-1 Certificates and the Class R-2 Certificates
will each constitute a single class of "residual interests" in
REMIC I and REMIC II, respectively, within the meaning of the
REMIC Provisions. Assuming compliance with all provisions of
the Pooling and Servicing Agreement, for New York State and
City tax purposes, each of REMIC I and REMIC II will be
classified as a REMIC and not as a corporation, partnership or
trust, in conformity with the federal income tax treatment of
such assets. Accordingly, each of REMIC I and REMIC II will be
exempt from all New York State and City taxation imposed upon
its income, franchise or capital stock. Additionally, each of
REMIC I and REMIC II will be exempt from all State of
California taxation imposed upon its income, franchise or
capital stock, other than the application of the annual
minimum tax under Section 23153 of the California Revenue and
Taxation Code.
(L) 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 I's assets consist of assets
described in Section 7701(a)(19)(C)(i) through (x) of the
Code. If less than 95% of the REMIC I's assets consist of such
items, a Class A Certificate will be considered qualified
assets in the same proportion as the REMIC I'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 I's assets are "real estate assets" as defined in
Section 856(c)(3)(B) of the Code. If less than 95% of the
REMIC I's assets are "real estate assets," 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 I'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 LLP may rely on
certificates of responsible officers of the Company, the 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 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
govern-mental agency or body is required on the part of MBIA,
the lack of which would adversely affect the validity or
enforceability of the MBIA Policies; to the extent required by
applicable legal requirements that would adversely affect the
validity or enforceability of the MBIA Policies, the form of
the MBIA Policies has been filed with, and approved by, all
governmental authorities having jurisdiction over MBIA in
connection with such MBIA Policies.
(E) To the extent the MBIA Policies
constitute securities within the meaning of Section 2(l) of
the Securities Act of 1933, as amended (the "Act"), it is a
security that is exempt from the registration requirements of
the Act.
(F) The information set forth under
the caption "MBIA Policies and MBIA" in the Prospectus
Supplement, relating to the offer and sale of the Class A
Certificates, to the Prospectus forming a part of the
Registration Statement on Form S-3 (No. 333-20817) filed by
the Company with the Securities and Exchange Commission and
declared effective on March 7, 1997, insofar as such
statements constitute a description of the MBIA Policies,
accurately summarizes the MBIA Policies.
In rendering this opinion, such counsel may rely, as to matters of
fact, on certificates of responsible officers of the Company, the Trustee, 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) In giving its opinion required by subsection (b)(i) of
this Section, Stroock & Stroock & Xxxxx LLP shall additionally state
that nothing has come to its attention that has caused it to believe
that the Registration Statement, 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 Representatives, as
representatives 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
Representatives, as representatives of the Underwriters, for such use)
or at Closing Time, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (other than the financial, numerical,
statistical and quantitative information contained therein, the
information under the heading "The MBIA Policies and MBIA" therein,
and the information in the Exhibits thereto, as to which such counsel
need express no view).
(c) At Closing Time, the Representatives, as representatives of the
Underwriters, shall have received from Stroock & Stroock & Xxxxx LLP, counsel
for the Underwriters, a letter, dated as of Closing Time, authorizing the
Representatives, as representatives of the Underwriters, to rely upon each
opinion delivered by Stroock & Stroock & Xxxxx LLP 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 Representatives, as representatives of
the Underwriters, and attaching a copy of each such opinion.
(d) At Closing Time there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and the Originators and their subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and the 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 Representatives, as representatives of the Underwriters, shall have received
from KPMG Peat Marwick a letter dated as of Closing Time and in form and
substance satisfactory to the Representatives, as representatives of the
Underwriters, to the effect that they have carried out certain specified
procedures, not constituting an audit, with respect to (i) certain amounts,
percentages and financial information relating to the Company's servicing
portfolio which are included in the Prospectus and which are specified by the
Representatives, as representatives of the Underwriters, and have found such
amounts, percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and the
Originators identified in such letter, (ii) the information contained in the
weighted average life tables contained in the Prospectus under the caption
"Maturity, Prepayment and Yield Considerations" and have found such information
to be in agreement with the corresponding information as computed by KPMG Peat
Marwick and (iii) certain information regarding the Loans and the Files which
are specified by the Representatives, as representatives of the Underwriters,
and contained in the Current Report on Form 8-K described in Section 5(l) hereof
and setting forth the results of such specified procedures.
Notwithstanding the foregoing, if the letter delivered by KPMG Peat
Marwick at Closing Time does not cover the information set forth in subclause
(iii), the Company shall cause KPMG Peat Marwick to deliver to the
Representatives, as representatives of the Underwriters, an additional letter
covering such information within 5 business days of the Closing Time.
(f) At Closing Time, the Representatives, as representatives of the
Underwriters, shall have received from the Trustee a certificate signed by one
or more duly authorized officers of the Trustee, dated as of Closing Time, as to
the due acceptance of the Pooling and Servicing Agreement by the Trustee and the
due authentication of the Certificates by the Trustee and such other matters as
the Representatives, as representatives of the Underwriters, shall request.
(g) At Closing Time, the Representatives, as representatives of the
Underwriters, shall have received a certificate signed by one or more duly
authorized officers of MBIA, dated as of Closing Time, to the effect that the
information contained under the caption "The MBIA Policies and MBIA" in the
Prospectus and in the Exhibits A and B to the Prospectus is true and accurate in
all material respects and such other matters as the Representatives, as
representatives of the Underwriters, shall request.
(h) At Closing Time, the Representatives, as representatives of the
Underwriters, shall have received a certificate signed by one or more duly
authorized officers of the Company and the Originators, dated as of Closing Time
to the effect that:
(i) the representations and warranties of the Company
and the Originators in the Pooling and Servicing Agreement are true and
correct in all material respects at and on the Closing Date, with the
same effect as if made on the Closing Date;
(ii) the Company and the Originators have complied
with all the agreements and satisfied all the conditions on its part to
be performed or satisfied in connection with the sale and delivery of
the Certificates;
(iii) all statements and information contained in the
Prospectus Supplement under the captions "The Representative and the
Originators" and "The Loans" and in the Prospectus under the captions
"The Representative and the Originators" and "Lending Programs" are
true and accurate in all material respects and nothing has come to such
officer's attention that would lead him to believe that any of the
specified sections contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the
statements and information therein, in the light of the circumstances
under which they were made, not misleading;
(iv) the information set forth in the Schedule of
Loans required to be furnished pursuant to the Pooling and Servicing
Agreement is true and correct in all material respects and the Loans
actually being delivered to the Trustee 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 and Class A-11, 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, will not vary by more than 1/10th of one year from 0.50
years, 1.20 years, 2.07 years, 3.03 years, 4.01 years, 5.34 years, 9.94
years, 6.46 years, 1.39 years, 6.70 years and 6.53 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 Representatives, as representatives 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, to hold in trust for the benefit of the
holders of the Certificates, Pool I and Pool II Home Equity Loans and Pool III
Multifamily Loans (as defined in the Prospectus) with aggregate outstanding
principal balances as of the Cut-Off Date of at least $371,000,000, $397,000,000
and $9,000,000, 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, Class A-7 and Class A-8 (I.E., $550,000,000)
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-9
and Class A-10 Certificates (I.E., $410,000,000) over (ii) the aggregate
outstanding principal balances as of the Cut-Off Date of the Pool II Home Equity
Loans actually delivered to the Trustee, and (C) the excess of (i) the aggregate
initial principal balance of the Class A-11 Certificates (I.E., $10,000,000)
over (ii) the aggregate outstanding principal balances as of the Cut-Off Date of
the Pool III Multifamily Loans actually delivered to the Trustee.
(l) On or before the Closing Time the Company shall have delivered to
the Representatives a Current Report on Form 8-K containing a detailed
description of the Loans actually being delivered to the Trustee at Closing
Time, in form and substance satisfactory to the Representatives.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives, as representatives to the Underwriters, by notice to the
Company at any time at or prior to Closing time, and such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof.
Section 6. INDEMNIFICATION.
(a) The Company and the Originators jointly and severally agree to
indemnify and hold harmless each of the Underwriters and each person, if any,
who controls each of the Underwriters within the meaning of Section 15 of the
1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
untrue statement or omission described in clause (i) above, or any such
alleged untrue statement or omission, if such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the reasonable
fees and disbursements of counsel chosen by such Underwriter),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any untrue statement or omission described in clause (i) above, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with the information referred to in clauses (x), (y) and
(z) of the immediately following paragraph; provided, further, such indemnity
with respect to the Prospectus or any preliminary prospectus shall not inure to
the benefit of any Underwriter (or person controlling such Underwriter) from
whom the person suffering any such loss, claim, damage or liability purchased
the 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 Representatives, as representatives of the Underwriters, may
terminate this Agreement, by notice to the Company and the Originators, at any
time at or prior to Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Registration Statement or Prospectus, any change, or
any development involving a prospective change, in or affecting particularly the
business or properties of the Company and the Originators considered as one
entity or MBIA which, in the reasonable judgment of the Representatives, as
representatives of the Underwriters, materially impairs the investment quality
of 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 Representatives, as representatives 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 Representatives, as representatives of the Underwriter, the effects of
any such outbreak, escalation, declaration, calamity, or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and payment
for the 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.
(vi) The Company shall file the Computational
Materials (if any) provided to it by each Underwriter under Section
11(a)(iii) with the Commission pursuant to a Current Report on Form 8-K
no later than 10:00 a.m. on the date required pursuant to the
Xxxxxx/PSA Letters.
Section 12. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Prudential, as representative of the
Underwriters, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department (Fax: 000-000-0000); Salomon, as representative of the Underwriters,
Xxxxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed
Finance (Fax: 212-783- 3848); Lehman, as representative of the Underwriters,
Three World Financial Center, New York, New York 10285, Attention: Asset Backed
Securities (Fax: 000-000-0000); and notices to the Company or any Originator
shall be directed to it at 0000 Xxxxxx Xxxxxx, Xxxxx, Xxx Xxxxxx 00000,
Attention: Executive Vice President (Fax: 000-000-0000).
Section 13. PARTIES. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Underwriters, the Company,
the Originators and their respective successors. Nothing expressed or mentioned
in this Agreement or the Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters, the Company,
the Originators and their respective successors and the controlling persons and
officers and directors referred to in Section 6 and 7 hereof and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
with respect to this Agreement or the Pricing Agreement or any provision herein
or therein contained. This Agreement and the Pricing Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company, the Originators and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of 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:_____________________________
Xxxxx Xxxxxxx
Treasurer
THE ORIGINATORS LISTED ON
ANNEX A HERETO
By:_____________________________
Xxxxx Xxxxxxx
Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
PRUDENTIAL SECURITIES INCORPORATED
By:________________________
Name:
Title:
SALOMON BROTHERS INC.
By:________________________
Name:
Title:
XXXXXX BROTHERS INC.
By:________________________
Name:
Title:
Acting on behalf of themselves
and as the representatives of
the Underwriters.
ANNEX A
THE ORIGINATORS
The Money Store/Minnesota Inc.
The Money Store/D.C. Inc.
The Money Store/Kentucky Inc.
The Money Store Home Equity Corp.
TMS Mortgage Inc.
ANNEX B
Prudential Salomon
Securities Brothers Xxxxxx Xxxxxxx Bear,
Incorporated Inc. Brothers Inc. Xxxxx Xxxxxxx & Co. Total
Class A-1 $50,500,000 $0 $0 $20,000,000 $10,000,000 $80,500,000
Class A-2 $54,250,000 $0 $0 $20,000,000 $10,250,000 $84,500,000
Class A-3 $65,400,000 $0 $0 $27,000,000 $13,000,000 $105,400,000
Class A-4 $35,500,000 $0 $0 $14,500,000 $ 7,500,000 $ 57,500,000
Class A-5 $32,800,000 $0 $0 $13,500,000 $ 6,500,000 $52,800,000
Class A-6 $30,900,000 $0 $0 $12,000,000 $60,000,000 $48,900,000
Class A-7 $40,400,000 $0 $0 $16,500,000 $ 8,500,000 $65,400,000
Class A-8 $34,000,000 $0 $0 $14,000,000 $ 7,000,000 $55,000,000
Class A-9 $0 $270,000,000 $0 $0 $0 $270,000,000
Class A-10 $0 $0 $140,000,000 $0 $0 $140,000,000
Class A-11 $10,000,000 $0 $0 $0 $0 $10,000,000
-------------- -------------- -------------- ------------- ----------- --------------
TOTAL $353,750,000 $270,000,000 $140,000,000 $137,500,000 $68,750,000 $970,000,000
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