THE MONEY STORE INC.
TMS AUTO HOLDINGS, INC.
The Money Store Auto Trust 1997-4
$17,500,000 Class A-1 5.90875% Asset Backed Notes
$44,500,000 Class A-2 6.35% Asset Backed Notes
$28,000,000 Class A-3 6.46% Asset Backed Notes
UNDERWRITING AGREEMENT
December 16, 1997
SALOMON BROTHERS INC
as Representative (the "Representative")
of the several Underwriters named
herein
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Money Store Inc., a New Jersey corporation ("TMSI") and TMS Auto
Holdings, Inc., a Delaware corporation (the "Seller") propose to cause THE MONEY
STORE AUTO TRUST 1997-4 (the "Trust") to issue and sell $17,500,000 principal
amount of its Class A-1 5.90875% Asset Backed Notes (the "Class A-1 Notes"),
$44,500,000 principal amount of its Class A-2 6.35% Asset Backed Notes (the
"Class A-2 Notes") and $28,000,000 principal amount of its Class A-3 6.46% Asset
Backed Notes (the "Class A-3 Notes" and, together with the Class A-1 Notes and
the Class A-2 Notes, the "Notes") to the several underwriters named in Schedule
I attached hereto (the "Underwriters"). The assets of the Trust include, among
other things, a pool of non-prime receivables generated pursuant to motor
vehicle retail installment sale contracts (the "Initial Receivables") acquired
by the Seller pursuant to a purchase agreement dated as of November 30, 1997
(the "Purchase Agreement") between the Seller and TMS Auto Finance, Inc., all
monies received under the Initial Receivables after, with respect to each
Initial Receivable, the later of (x) November 30, 1997 and (y) the date of its
origination (the "Initial Cutoff Date"), additional receivables generated
pursuant to motor vehicle retail installment sale contracts (the "Subsequent
Receivables," and together with the Initial Receivables, the "Receivables") to
be conveyed to the Trust subsequent to the date of issuance of the Notes and all
monies received under the Subsequent Receivables after their respective
subsequent cutoff dates (each, a "Subsequent Cutoff Date"), an assignment of the
security interests in the vehicles financed thereby, certain bank accounts and
the proceeds thereof, a note guaranty insurance policy issued by MBIA Insurance
Corporation (the "Insurer") to the Indenture Trustee (as defined below) for the
benefit of the Noteholders (the "Note Policy"), and certain other property and
the proceeds thereof to be conveyed to the Trust pursuant to the Sale and
Servicing Agreement to be dated as of November 30, 1997 (the "Sale and Servicing
Agreement") among the Trust, the Seller, TMSI and TMS Auto Finance Inc., as
servicer (the "Servicer"). Pursuant to the Sale and Servicing Agreement, the
Seller will sell the Receivables to the Trust and the Servicer will service the
Receivables on behalf of the Trust. In addition, pursuant to the Sale and
Servicing Agreement, the Servicer will agree to perform certain administrative
tasks imposed on the Trust under the Indenture. The Notes will be issued
pursuant to the Indenture to be dated as of November 30, 1997 (as amended and
supplemented from time to time, the "Indenture"), between the Trust and The
Chase Manhattan Bank, a New York banking corporation (the "Indenture Trustee"
and in its capacity as collateral agent, the "Indenture Collateral Agent"). The
Trust also will issue one or more certificates representing the ownership
interest in the Trust (the "Certificates"). The Note Policy will be issued
pursuant to the Insurance Agreement dated as of November 30, 1997 by and among
the Insurer, TMSI, the Seller, the Servicer, the Trust, the Indenture Trustee
and Bankers Trust (Delaware), as owner trustee (the "Owner Trustee"). In
connection with the transactions contemplated hereby, the Representative, the
Insurer and TMSI will enter into an Indemnification Agreement dated as of
December 16, 1997 (the "Indemnification Agreement").
Prior to the delivery of the Notes by the Seller, and the public
offering thereof by the Underwriters, the Representative, the Seller and TMSI
shall enter into an agreement substantially in the form of Exhibit A hereto (the
"Pricing Agreement"), which shall specify such applicable information as is
indicated in, and be in substantially the form of, Exhibit A hereto. The
offering of the Notes will be governed by this Agreement, as supplemented by the
Pricing Agreement. From and after the date of the execution and delivery of the
Pricing Agreement, this Agreement shall be deemed to incorporate the Pricing
Agreement. Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Sale and Servicing Agreement or, if
not defined therein, in the Indenture.
The Seller and TMSI understand that the Underwriters propose to make a
public offering of the Notes as soon as the Underwriters deem advisable after
the Pricing Agreement has been executed and delivered.
Section 1. REPRESENTATIONS AND WARRANTIES OF TMSI AND THE SELLER.
(a) TMSI and the Seller represent and warrant to each of the
Underwriters as of the date hereof and, if the Pricing Agreement is executed on
a date other than the date hereof, as of the date of the Pricing Agreement (such
latter date being hereinafter referred to as the "Representation Date") as
follows:
(i) TMSI and the Seller have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(No. 333-14075) including a prospectus, and such amendments thereto as may
have been required to the date hereof, relating to the Notes and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"), and such registration
statement, as amended, has become effective. Such registration statement,
as amended, and the prospectus relating to the sale of the Notes
constituting a part thereof as from time to time amended or supplemented
(including any prospectus supplement (the "Prospectus Supplement") filed
with the Commission pursuant to Rule 424 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations") and any
information incorporated therein by reference are respectively referred to
herein as the "Registration Statement" and the "Prospectus." The conditions
of Rule 415 under the 1933 Act have been satisfied with respect to TMSI,
the Seller and the Registration Statement.
(ii) At the time the Registration Statement became effective and
at the Representation Date, the Registration Statement complied and will
comply in all material respects with the requirements of the 1933 Act, the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
1933 Act Regulations, and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, at the Representation Date (unless the term "Prospectus" refers
to a prospectus which has been provided to the Underwriters by TMSI and the
Seller for use in connection with the offering of the Notes which differs
from the Prospectus on file at the Commission at the time the Registration
Statement became effective, in which case at the time it is first provided
to the Underwriters for such use) and at Closing Time referred to in
Section 2 hereof, will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to TMSI and the Seller in writing by
any Underwriter through the Representative expressly for use in the
Registration Statement or Prospectus and provided further, that TMSI and
the Seller make no representations or warranties as to any information in
any Computational Materials (as defined in Section 11 below) provided by
any Underwriter to TMSI and the Seller 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 TMSI and the Seller to the
applicable Underwriter. The conditions to the use by TMSI and the Seller of
a registration statement on Form S-3 under the 1933 Act, as set forth in
the General Instructions to Form S-3, have been satisfied with respect to
the Registration Statement and the Prospectus.
(iii) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Seller, the Servicer, TMSI and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, which would have a material adverse effect on the ability of
each of TMSI, the Seller and the Servicer to perform its obligations under
the Basic Documents (as defined below) to which it is a party and (B) there
have been no transactions entered into by the Seller, the Servicer, TMSI or
any of its subsidiaries, other than those in the ordinary course of
business, which would have a material adverse effect on the ability of the
Seller, the Servicer or TMSI to perform its obligations under this
Agreement, the Pricing Agreement, the Sale and Servicing Agreement, the
Trust Agreement, the Purchase Agreement, the Indemnification Agreement and
the Insurance Agreement (this Agreement, the Pricing Agreement, the Sale
and Servicing Agreement, the Trust Agreement, the Purchase Agreement, the
Indemnification Agreement and the Insurance Agreement being herein referred
to, collectively, as the "Basic Documents") to which it is a party.
(iv) Each of TMSI, the Seller and the Servicer has been duly
organized and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation with all requisite power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the Basic Documents to which it is a party; and each is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a material
adverse effect on, (A) the ability of any of TMSI, the Seller or the
Servicer to perform its obligations under the Basic Documents to which it
is a party, or (B) the business, properties, financial position, operations
or results of operations of TMSI, the Seller or the Servicer.
(v) Any person who signed this Agreement on behalf of TMSI or the
Seller was, as of the time of such signing and delivery, and is now duly
elected or appointed, qualified and acting, and the Agreement, as so
executed, is duly and validly authorized, executed, and constitutes the
valid, legal and binding agreement of each of TMSI and the Seller,
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(vi) Each Basic Document to which it is a party has been duly and
validly authorized by TMSI, the Seller and the Servicer and, when executed
and delivered by TMSI, the Seller and the Servicer, as the case may be, and
duly and validly authorized, executed and delivered by the other parties
thereto, will constitute, the valid and binding agreement of TMSI, the
Seller and the Servicer, as the case may be, enforceable in accordance with
their terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights in general and by general principles of equity
regardless of whether such enforcement is considered in a proceeding in
equity or at law; and such Basic Documents and the Policies conform in all
material respects to the statements relating thereto contained in the
Prospectus.
(vii) The Notes, when duly and validly executed by the Indenture
Trustee, authenticated and delivered in accordance with the Indenture, and
delivered and paid for pursuant hereto will be validly issued and
outstanding and entitled to the benefits of the Indenture. The Notes
conform in all material respects to all statements relating thereto
contained in the Prospectus.
(viii) Neither the grant of the security interest in the
Collateral to the Indenture Collateral Agent pursuant to the Indenture, nor
the issuance or delivery of the Notes, nor the consummation of any other of
the transactions herein contemplated or in any other Basic Document, nor
the execution and delivery by each of TMSI, the Seller and the Servicer of
the Basic Documents to which it is a party, nor the fulfillment of the
terms of the Notes or each such Basic Document will result in the breach of
any term or provision of the charter or by-laws of TMSI, the Seller or the
Servicer, and none of TMSI, the Seller and the Servicer is in breach or
violation of or in default (nor has an event occurred which with notice or
lapse of time or both would constitute a default) under the terms of (A)
any material obligation, agreement, covenant or condition contained in any
material contract, indenture, loan agreement, note, lease or other material
instrument to which it is a party or by which it may be bound, or to which
any of its property or assets is subject, or (B) any law, decree, order,
rule or regulation applicable to TMSI, the Seller, the Servicer or the
Receivables of any court or supervisory, regulatory, administrative or
governmental agency, body or authority, or arbitrator having jurisdiction
over any such entity or its properties or the Receivables, the default in
or the breach or violation of which would have a material adverse effect on
TMSI, the Seller or the Servicer or the ability of any such entity to
perform its obligations under the Basic Documents to which it is a party;
and neither the issuance or delivery of the Notes, nor the consummation of
any other of the transactions herein contemplated, nor the fulfillment of
the terms of the Notes or the Basic Documents will result in such a breach,
violation or default which would have such a material adverse effect.
(ix) Except as described in the Prospectus, there is no action,
suit or proceeding against or investigation of TMSI, the Seller or the
Servicer now pending, or, to the knowledge of TMSI or the Seller,
threatened against TMSI, the Seller or the Servicer, before any court,
governmental agency or body (A) which is required to be disclosed in the
Prospectus (other than as disclosed therein) or (B) (1) asserting the
invalidity of any Basic Document or the Notes, (2) seeking to prevent the
issuance of the Notes or the consummation of any of the transactions
contemplated by the Basic Documents, (3) which would materially and
adversely affect the performance by any of TMSI, the Seller or the Servicer
of its obligations under the Basic Documents to which it is a party, or the
validity or enforceability of any Basic Document or the Notes or (4)
seeking to adversely affect the federal income tax attributes of the Notes
described in the Prospectus; all pending legal or governmental proceedings
to which TMSI, the Seller or the Representative is a party or of which any
of their respective property or assets is the subject which are not
described in the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not material
to TMSI's, the Seller's and the Servicer's ability to perform their
respective obligations under the Basic Documents to which each is a party.
(x) Each of TMSI, the Seller and the Servicer possesses such
licenses, certificates, authorities or permits issued by the appropriate
state or federal regulatory agencies or governmental bodies necessary to
conduct the businesses now conducted by it (except where the failure to
possess any such license, certificate, authority or permit would not
materially and adversely affect the holders of the Notes) and none has
received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which,
singly or in the aggregate, if the subject of any unfavorable decision,
ruling or finding, would materially and adversely affect the ability of
such entity to perform its obligations under the Basic Documents to which
it is a party.
(xi) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
issuance or sale of the Notes hereunder, except such as may be required
under the 1933 Act, the Trust Indenture Act or the 1933 Act Regulations or
state securities laws.
(xii) At the time of execution and delivery of the Sale and
Servicing Agreement by TMSI, the Seller, the Servicer and the Trust, the
Trust will have acquired good title to the Initial Receivables (including
an assignment of the security interests in the Financed Vehicles securing
the Initial Receivables and the proceeds of each of the foregoing), free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity, and, upon delivery to the Underwriters of the Notes, the
Underwriters will have good and marketable title to the Notes free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity. At each Subsequent Transfer Date, the Trust will have acquired
good title to the Subsequent Receivables (including an assignment of the
security interests in the Financed Vehicles securing the Subsequent
Receivables and the proceeds of each of the foregoing), free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(xiii) The transfer of the Initial Receivables by TMS Auto
Finance to the Seller, and by the Seller to the Trust at Closing Time will
be treated by TMS Auto Finance and the Seller for financial accounting and
reporting purposes as a sale of assets and not as a pledge of assets to
secure debt. The transfer of the Subsequent Receivables by TMS Auto Finance
to the Seller, and by the Seller to the Trust at the applicable Subsequent
Transfer Date will be treated by TMS Auto Finance and the Seller for
financial accounting and reporting purposes as a sale of assets and not as
a pledge of assets to secure debt.
(xiv) Any taxes, fees and other governmental charges that are
assessed and due in connection with the execution, delivery and issuance of
the Basic Documents and the Notes which have become due or will become due
on or prior to Closing Time shall have been paid at or prior to Closing
Time.
(xv) The Trust is not required to be registered as an "investment
company" under the Investment Company Act of 1940 (the "1940 Act").
(xvi) The Receivables are chattel paper as defined in the UCC as
in effect in the State of California.
(b) Any certificate signed by any officer of TMSI, the Seller or the
Servicer and delivered to the Representative on behalf of the Underwriters or
counsel for the Underwriters shall be deemed a representation and warranty by
TMSI, the Seller and the Servicer as to the matters covered thereby.
Section 2. DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Seller
agrees to cause the Trust to sell the Notes to the Underwriters. In the event
that the initial remittance rates and prices for the Notes have not been agreed
upon and the Pricing Agreement has not been executed and delivered by all
parties thereto by the close of business on the fourth business day following
the date of this Agreement, this Agreement shall terminate forthwith, without
liability of any party to any other party, unless otherwise agreed upon by the
Representative, TMSI and the Seller.
(b) Delivery of the Certificates shall be made at the offices of
Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place as shall be agreed upon by the Representative, TMSI and the
Seller, at 10:00 A.M., New York City time, on December 30, 1997, or such other
time not later than ten business days after such date as shall be agreed upon by
the Representative, TMSI and the Seller (such time and date of payment and
delivery being herein called "Closing Time").
(c) The Notes to be delivered will be initially represented by one or
more Class A-1 Notes, one or more Class A-2 Notes and one or more Class A-3
Notes registered in the name of Cede & Co., the nominee of the Depository Trust
Company ("DTC").
For purposes of this Agreement, all Notes initially represented by one
or more certificates registered in the name of Cede & Co., the nominee of DTC,
shall be referred to herein, collectively, as the "DTC Securities."
The interests of beneficial owners of the DTC Securities will be
represented by book entries on the records of DTC and participating members
thereof. Definitive Notes will be available in exchange for DTC Notes only under
the limited circumstances specified in the Indenture and Trust Agreement. The
DTC Notes to be purchased by the Underwriters will be delivered by the Seller to
the Underwriters (which delivery shall be made through the facilities of DTC)
against payment of the purchase price therefor. Each of the Underwriters hereby
agrees, severally and not jointly, subject to the terms, conditions and
provisions hereof, to purchase from the Trust the Notes in the principal amounts
set forth opposite its name on Schedule I at the prices specified in the Pricing
Agreement. The purchase price shall be paid by the Representative by a same day
federal funds wire payable to the order of the Seller or its designee. The Notes
will be made available for examination by the Representative not later than
10:00 A.M. on the last business day prior to Closing Time.
(d) The Notes shall be offered to the public from time to time for
sale in negotiated transactions or otherwise, at prices determined at the time
of sale.
Section 3. COVENANTS OF TMSI AND THE SELLER. TMSI and the Seller
covenant with each of the Underwriters as follows:
(a) Either TMSI or the Seller will promptly notify the
Representative, and confirm the notice in writing, (i) of any
amendment to the Registration Statement; (ii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information; (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceedings for that purpose; and
(iv) of the receipt by either of any notification with respect to the
suspension of the qualification of the Notes or the Certificates for
sale in any jurisdiction or the initiation or threatening of any
proceedings for that purpose. TMSI and the Seller will make every
reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Either TMSI or the Seller will give the Representative notice
of their intention to file or prepare any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus (including any revised prospectus which they propose for
use by the Underwriters in connection with the offering of the Notes
which differs from the prospectus on file at the Commission at the
time the Registration Statement becomes effective, whether or not such
revised prospectus is required to be filed pursuant to Rule 424(b) of
the 1933 Act Regulations), will furnish the Representative with copies
of any such amendment or supplement a reasonable amount of time prior
to such proposed filing or use, as the case may be, and, unless
required by law to do so, will not file any such amendment or
supplement or use any such prospectus to which the Representative or
counsel for the Underwriters shall reasonably object.
(c) TMSI and the Seller will deliver to the Representative as
many signed and as many conformed copies of the Registration Statement
as originally filed and of each amendment thereto (in each case
including exhibits filed therewith) as the Representative may
reasonably request.
(d) TMSI and the Seller will furnish to the Representative, from
time to time during the period when the Prospectus is required to be
delivered under the 1933 Act or the Securities Exchange Act of 1934,
as amended (the "1934 Act"), such number of copies of the Prospectus
(as amended or supplemented) as the Representative may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act
or the respective applicable rules and regulations of the Commission
thereunder.
(e) If any event shall occur as a result of which it is
necessary, in the reasonable opinion of counsel for the Underwriters,
to amend or supplement the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, TMSI and the Seller will forthwith
amend or supplement the Prospectus (in form and substance satisfactory
to counsel for the Underwriter) so that, as so amended or
supplemented, the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading,
and TMSI and the Seller will furnish to the Representative a
reasonable number of copies of such amendment or supplement. Neither
the consent of the Representative of, nor the delivery by the
Representative of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 5.
(f) TMSI and the Seller will endeavor, in cooperation with the
Underwriter, to qualify the Notes for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as the Representative may designate; provided,
however, that neither TMSI nor the Seller shall be obligated to
qualify as a foreign corporation in any jurisdiction in which it is
not so qualified. In each jurisdiction in which the Notes have been so
qualified, TMSI and the Seller will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from
the date hereof.
(g) TMSI and the Seller will file with the Commission such
reports on Form SR as may be required pursuant to Rule 463 under the
1933 Act.
(h) So long as any Notes shall be outstanding, TMSI and the
Seller will deliver to the Underwriters, as promptly as practicable,
such information concerning TMSI, the Seller, the Servicer or the
Notes as the Representative may reasonably request from time to time.
Section 4. PAYMENT OF EXPENSES. TMSI and the Seller will pay all
expenses incident to the performance of their obligations under this Agreement,
including (i) the printing (or other reproducing) and filing of the Registration
Statement as originally filed and of each amendment thereto (other than
amendments relating to the filing of Computational Materials pursuant to Section
11); (ii) the reproducing of the Basic Documents and the Indenture; (iii) the
preparation, printing, issuance and delivery of the DTC Securities to the
Underwriters; (iv) the fees and disbursements of (A) the Underwriters' counsel,
(B) accountants for TMSI and the Seller and issuer of the comfort letter, (C)
the Indenture Trustee and its counsel, (D) the Owner Trustee and its counsel,
and (E) DTC in connection with the book-entry registration of the DTC
Securities; (v) the qualification of the Notes under state securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey; (vi)
the printing (or other reproducing) and delivery to the Underwriters of copies
of the Registration Statement as originally filed and of each amendment thereto,
of each preliminary prospectus and of the Prospectus and any amendments or
supplements thereto; (vii) the fees charged by the Insurer; (viii) the fees
charged by each of Standard & Poor's Structured Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc. ("S&P") and Xxxxx'x Investors Service, Inc.
("Moody's") for rating the Notes; and (ix) the reproducing and delivery to the
Underwriters of copies of the Blue Sky Survey.
If this Agreement is terminated by the Representative in accordance
with the provisions of Section 5 or Section 9(a)(i) (unless, in the case of
Section 9(a)(i), such termination arises from a change or development involving
a prospective change in or affecting the business or properties of the Insurer),
TMSI and the Seller shall reimburse the Representative for all of its reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. CONDITIONS OF THE UNDERWRITERS' Obligations. The
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of TMSI and the Seller herein contained or in any
of the Basic Documents, to the performance by TMSI and the Seller of their
respective obligations hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective and,
at Closing Time, no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. As of
the Closing Time, the Prospectus shall have been filed with the
Commission in accordance with Rule 424 of the 1933 Act Regulations.
(b) At Closing Time, the Representative shall have received:
(i) The favorable opinion, dated as of Closing Time, of
Stroock & Stroock & Xxxxx LLP, counsel for the Underwriters, to the
effect that:
(A) The Registration Statement is effective under the
1933 Act, and, to the best of their knowledge and information, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(B) At the time the Registration Statement became
effective and at the Representation Date, the Registration
Statement (other than the financial, numerical, statistical and
quantitative information included therein, as to which no opinion
need be rendered) complied as to form in all material respects
with the requirements of the 1933 Act and the Rules and
Regulations thereunder.
(C) The information in the Prospectus under "The
Notes," and "Description of the Purchase Agreements and the Trust
Documents" and the information in the Prospectus Supplement under
"Description of the Notes" insofar as they constitute summaries
of certain provisions of the Notes, the Indenture and the Trust
Agreement, summarizes fairly such provisions.
(D) The information in the Prospectus under "Prospectus
Summary -- Tax Status," "Prospectus Summary -- ERISA
Considerations" "Federal Income Tax Consequences," and "ERISA
Considerations" and in the Prospectus Supplement under "Summary
of Terms -- Tax Status," "Summary of Terms -- ERISA
Considerations," "Certain Federal Income Tax Consequences," and
"ERISA Considerations," to the extent that they constitute
matters of federal, New York or California law, summaries of
legal matters, documents or proceedings or legal conclusions, has
been reviewed by them and is correct in all material respects.
(E) The Seller and the Servicer have been duly
incorporated and are validly existing and in good standing under
the laws of the State of Delaware.
(F) The Seller has the power to engage in the
transactions contemplated by each of this Agreement, the Pricing
Agreement, the Indemnification Agreement and the Trust Agreement,
and the Seller and the Servicer have the power to engage in the
transactions contemplated by each of the Sale and Servicing
Agreement, the Insurance Agreement and the Purchase Agreement,
and have all requisite power, authority and legal right to
execute and deliver this Agreement, the Pricing Agreement, the
Sale and Servicing Agreement, the Purchase Agreement, the
Indemnification Agreement, the Insurance Agreement and the Trust
Agreement, as the case may be (and any other documents delivered
in connection therewith) and to perform and observe the terms and
conditions of such instruments.
(G) Each of the Sale and Servicing Agreement, the
Insurance Agreement and the Purchase Agreement has been duly
authorized, executed and delivered by the Seller and the
Servicer, and each of the Trust Agreement, the Indemnification
Agreement, the Pricing Agreement and this Agreement has been duly
authorized, executed and delivered by the Seller. Assuming due
authorization, execution and delivery by the other parties
thereto, the Sale and Servicing Agreement, the Purchase
Agreement, the Indemnification Agreement, the Insurance
Agreement, the Trust Agreement, the Pricing Agreement and this
Agreement are legal, valid and binding agreements enforceable in
accordance with their respective terms against the Seller and the
Servicer, as the case may be, subject (a) to the effect of
bankruptcy, insolvency, reorganization, moratorium and similar
laws relating to or affecting creditors' rights generally and
court decisions with respect thereto, (b) to the understanding
that no opinion is expressed as to the application of equitable
principles in any proceeding, whether at law or in equity, and
(c) to limitations of public policy under applicable securities
laws as to rights of indemnity and contribution thereunder.
(H) The Receivables are chattel paper as defined in the
UCC as in effect in the State of California.
(I) The Seller is not, and will not as a result of the
offer and sale of the Notes as contemplated in the Prospectus and
this Agreement become, an "investment company" as defined in the
Investment Company Act of 1940, as amended (the "Investment
Company Act"), or a company "controlled by" an "investment
company" within the meaning of the Investment Company Act.
(J) All actions required to be taken and all filings
required to be made by the Seller or the Trust under the 1933 Act
and the 1934 Act prior to the sale of the Notes have been duly
taken or made.
(K) The Trust Agreement need not be qualified under the
Trust Indenture Act and the Trust is not required to register
under the Investment Company Act.
(L) The Indenture has been duly qualified under the
Trust Indenture Act.
Stroock & Stroock & Xxxxx LLP shall additionally
provide an opinion, in form and substance satisfactory to Xxxxx'x
and S & P, that if a court concludes that the transfer of the
Receivables from the Seller to the Owner Trustee on behalf of the
Trust is a sale, the interest of the Trust in the Receivables,
the interest of the Trust in the Seller's security interests in
the Financed Vehicles securing the Receivables and the proceeds
of each of the foregoing will be perfected upon the filing of
appropriate UCC-1 financing statements and, if a court concludes
that such transfer is not a sale, the Sale and Servicing
Agreement constitutes a grant by the Seller to the Trust of a
valid security interest in the Receivables, the interest of the
Trust in the Seller's security interests in the Financed Vehicles
securing the Receivables and the proceeds of each of the
foregoing, which security interest will be perfected upon the
filing of appropriate UCC-1 financing statements.
Stroock & Stroock & Xxxxx LLP shall additionally
provide an opinion, in form and substance satisfactory to Xxxxx'x
and S&P, regarding the creation and attachment of a security
interest in the Collateral (including, without limitation, the
Trust Estate, as to which such opinion shall also cover the
perfection and priority of the Indenture Collateral Agent's
interest therein) in favor of the Indenture Trustee on behalf of
the Noteholders. Such opinions may contain such assumptions,
qualifications and limitations as are customary in opinions of
this type and are reasonably acceptable to counsel to the
Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction
other than the federal law of the United States of America and
the laws of the States of New York and California.
In rendering its opinion, Stroock & Stroock & Xxxxx LLP
shall additionally state that nothing has come to its attention
that has caused it to believe that the Registration Statement, at
the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, at the Representation Date
(unless the term "Prospectus" refers to a prospectus which has
been provided to the Underwriters by TMSI for use in connection
with the offering of the Notes which differs from the Prospectus
on file at the Commission at the Representation Date, in which
case at the time it is first provided to the Underwriters for
such use) or at Closing Time, included an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other
than (i) the financial, numerical, statistical and quantitative
information contained therein and (ii) the information under the
heading "The Insurer," as to which such counsel need express no
view).
In rendering its opinions, Stroock & Stroock & Xxxxx
LLP may rely on certificates of responsible officers of the
Seller, the Indenture Trustee, the Owner Trustee, and public
officials or, as to matters of law other than New York,
California or Federal law or the General Corporation Law of the
State of Delaware, on opinions of other counsel (copies of which
opinions shall be delivered to you). Such opinion may contain
such assumptions, qualifications and limitations as are customary
in opinions of this type and are reasonably acceptable to the
Representative.
(ii) The favorable opinion of Stroock & Stroock & Xxxxx LLP, special
California counsel for the Seller and the Servicer, dated as of the Closing Time
to the effect that (i) noting the assignee's name on a certificate of title,
where a validly perfected security interest in a motor vehicle, registered in
California and for which a certificate of title has been issued by the
Department of Motor Vehicles of the State of California, is not necessary to
continue the perfection of the security interest assigned as against the debtor
on the Contract, creditors and transferees of the debtor on the Contract, and
(ii) the Indenture Collateral Agent has acquired a perfected first priority
security interest in the Financed Vehicles located in the State of California
and subject to the statutes, laws and regulations governing motor vehicles
located in the State of California. Such opinion may contain such assumptions,
qualifications and limitations as are customary in opinions of this type and are
reasonably acceptable to counsel to the Underwriters. In rendering such opinion,
such counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of California.
(iii) The favorable opinion, dated as of Closing Time, of corporate
counsel for the Seller, the Servicer and TMSI, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(A) TMSI has been duly organized and is validly
existing and is in good standing under the laws of the State of
New Jersey.
(B) TMSI has the power to engage in the transactions
contemplated by this Agreement, the Pricing Agreement, the Sale
and Servicing Agreement, the Indemnification Agreement and the
Insurance Agreement and has all requisite power, authority and
legal right to execute and deliver this Agreement, the Pricing
Agreement, the Sale and Servicing Agreement, the Indemnification
Agreement and the Insurance Agreement (and any other documents
delivered in connection therewith) and to perform and observe the
terms and conditions of such instruments.
(C) This Agreement, the Pricing Agreement, the Sale and
Servicing Agreement, the Indemnification Agreement and the
Insurance Agreement have been duly authorized, executed and
delivered by TMSI and, assuming due authorization, execution and
delivery by the other parties thereto, are legal, valid and
binding agreements of TMSI and assuming such agreements were
governed by the laws of the State of New Jersey, would be
enforceable in accordance with their respective terms against
TMSI subject (a) to the effect of bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or
affecting creditors' rights generally and court decisions with
respect thereto, (b) to the understanding that no opinion is
expressed as to the application of equitable principles in any
proceeding, whether at law or in equity, and (c) to limitations
of public policy under applicable securities laws as to rights of
indemnity and contribution thereunder.
(D) Neither the transfer of the Receivables by the
Seller to the Owner Trustee on behalf of the Trust, nor the
assignment by the Seller of the Trust Estate to the Trust, nor
the consummation of the transactions contemplated by, nor the
fulfillment of the terms of, the Sale and Servicing Agreement,
the Indemnification Agreement, the Insurance Agreement, the
Purchase Agreement, this Agreement and the Pricing Agreement, in
the case of the Seller and TMSI, and the Sale and Servicing
Agreement, the Insurance Agreement and the Purchase Agreement, in
the case of the Servicer, and the Trust Agreement, in the case of
the Seller, conflicts or will conflict with or results or will
result in a breach of or constitutes or will constitute a default
under (a) the Certificate of Incorporation or Bylaws of TMSI, the
Seller or the Servicer, as applicable, (b) the terms of any
material indenture or other material agreement or instrument of
which counsel has knowledge to which TMSI, the Seller or the
Servicer, as applicable, is a party or by which it is bound or to
which it is subject or (c) any statute or order, rule,
regulation, writ, injunction or decree of which counsel has
knowledge, or of any court, governmental authority or regulatory
body to which TMSI, the Seller or the Servicer, as applicable, is
subject or by which it is bound, or results in, or will result in
the creation or imposition of any lien or encumbrance upon the
Trust Estate or upon the related Notes, except as otherwise
contemplated by the Indenture.
(E) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by TMSI or the Seller of, or
compliance by TMSI or the Seller with, this Agreement, the
Pricing Agreement, the Sale and Servicing Agreement, the
Indemnification Agreement or the Insurance Agreement, or the
offer, issuance, sale or delivery of the Notes, or, in the case
of the Servicer, by the Servicer of, or compliance by the
Servicer with, the Sale and Servicing Agreement, the Insurance
Agreement or the Purchase Agreement, or, in the case of the
Seller, by the Seller of, or compliance of the Seller with, the
Trust Agreement or the consummation of any other transactions by
TMSI, the Seller or the Servicer contemplated by the Sale and
Servicing Agreement, the Purchase Agreement, this Agreement, the
Indemnification Agreement, the Insurance Agreement, the Trust
Agreement and the Pricing Agreement, as the case may be, except
as may be required under the blue sky laws of any jurisdiction
(as to which such counsel need not opine) and such other
approvals as have been obtained.
(F) Except as set forth in the Prospectus Supplement,
there is no action, suit, proceeding or investigation pending or,
to the best of such counsel's knowledge, threatened against the
Seller, the Servicer or TMSI which, in such counsel's judgment,
either in any one instance or in the aggregate, may result in any
material adverse change in the business, operation, financial
condition, properties or assets of the Seller, the Servicer or
TMSI or in any material impairment of the right or ability of the
Seller, the Servicer or TMSI to carry on its business
substantially as now conducted or result in any material
liability on the part of the Seller, the Servicer or TMSI or
which would draw into question the validity of this Agreement,
the Pricing Agreement, the Certificates, the Purchase Agreement,
the Indemnification Agreement, the Insurance Agreement, the Trust
Agreement, the Sale and Servicing Agreement or of any action
taken or to be taken in connection with the transactions
contemplated thereby, or which would be likely to impair
materially the ability of any of the Seller, the Servicer or TMSI
to perform under the terms of this Agreement, the Pricing
Agreement, the Purchase Agreement, the Indemnification Agreement,
the Insurance Agreement, the Sale and Servicing Agreement or the
Trust Agreement, as applicable.
In rendering its opinions, such counsel may rely on
certificates of responsible officers of the Seller, the Servicer and
TMSI, and public officials or, as to matters of law other than New
Jersey or the Federal law, on opinions of other counsel (copies of
which opinions shall be delivered to you). Such opinion may contain
such assumptions, qualifications and limitations as are customary in
opinions of this type and are reasonably acceptable to the
Representative.
(iv) The favorable opinion of in-house counsel to the
Servicer, or such other counsel acceptable to counsel for the
Underwriters, dated as of Closing Time, satisfactory in form and
substance to counsel for the Underwriters, to the effect that:
Such counsel has been advised of the Servicer's standard
operating procedures relating to the Servicer's acquisition of a
perfected first priority security interest in the vehicles financed by
the Servicer pursuant to the retail installment sale contracts in the
ordinary course of the Servicer's business. Assuming that the
Servicer's standard procedures are followed with respect to the
perfection of security interests in the Financed Vehicles (such
counsel having no reason to believe that the Servicer has not or will
not continue to follow its standard procedures in connection with the
perfection of security interests in the Financed Vehicles), the
Servicer has acquired or will acquire a perfected first priority
security interest in the Financed Vehicles.
Such opinion may contain such assumptions, qualifications
and limitations as are customary in opinions of this type and are
reasonably acceptable to counsel to the Underwriters.
(v) The favorable opinion, dated as of Closing Time, of
counsel for the Insurer, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(A) The Insurer is a stock insurance company duly
organized, validly existing and authorized to transact financial
guaranty insurance business under the laws of the State of New
York.
(B) The Note Policy, the Indemnification Agreement and
the Insurance Agreement have been duly authorized, executed and
delivered by the Insurer.
(C) The Note Policy, the Indemnification Agreement and
the Insurance Agreement constitute valid and binding obligations
of the Insurer, enforceable against the Insurer in accordance
with their terms, subject, as to the enforcement of remedies, to
bankruptcy, insolvency, reorganization, rehabilitation,
moratorium and other similar laws affecting the enforceability of
creditors' rights generally applicable in the event of the
bankruptcy or insolvency of the Insurer and to the application of
general principles of equity and subject, in the case of the
Insurance Agreement, to principles of public policy limiting the
right to enforce the indemnification provisions contained therein
insofar as such provisions relate to indemnification for
liabilities arising under the securities law.
(D) The Note Policy is exempt from registration under
the Securities Act of 1933, as amended (the "Act").
(E) Neither the execution nor the delivery by the
Insurer of the Note Policy, the Indemnification Agreement or the
Insurance Agreement, nor the performance by it of its obligations
thereunder, will conflict with any provision of the certificate
of incorporation or the by-laws of the Insurer or, to the best of
such counsel's knowledge, result in a breach of, or constitute a
default under, any agreement or other instrument to which the
Insurer is a party or by which it or any of its property is bound
or, to the best of such counsel's knowledge, violate any
judgment, order or decree applicable to the Insurer of any
governmental or regulatory body, administrative agency, court or
arbitrator having jurisdiction over the Insurer (except that in
the published opinion of the Securities and Exchange Commission
the indemnification provisions of the Indemnification Agreement,
insofar as they relate to indemnification for liabilities arising
under the Act, are against public policy as expressed in the
Securities Act of 1933, as amended, and are therefore
unenforceable).
Such counsel shall additionally state that nothing has
come to its attention that has caused it to believe that, as of
the date of the Prospectus Supplement, relating to the offer and
sale of the Notes, to the Prospectus forming a part of the
Registration Statement on Form S-3 (No. 333-14075) filed by the
Company with the Securities and Exchange Commission and declared
effective on December 9, 1996, or as of the date of counsel's
opinion, the information set forth under the captions "The
Insurer" and "The Note Policy" in the Prospectus Supplement,
insofar as such statements constitute a description of the Note
Policy, accurately summarize the Note Policy (such counsel not
being required to express an opinion with respect to any
financial statements or other financial information contained or
referred to therein). Such statement may be given with the
understanding that such information is limited and does not
purport to provide the scope of disclosure required to be
included in a prospectus with respect to a Registrant under the
Securities Act of 1933, as amended, in connection with the public
offer and sale of securities of such registrant.
In rendering this opinion, such counsel may rely, as to
matters of fact, on certificates of responsible officers of the
Insurer, the Trustee and public officials. Such opinion may
assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties
thereto other than the Insurer.
(vi) The favorable opinion, dated as of Closing Time, of
Xxxxxxxx, Xxxxxx & Finger, in form and substance satisfactory, to
counsel for the Underwriters, to the effect that:
(A) The Owner Trustee is a Delaware banking corporation
duly incorporated and organized and validly existing under the
laws of the State of Delaware.
(B) The Owner Trustee has the full corporate trust
power to accept the office of owner trustee under the Trust
Agreement and to enter into and perform its obligations under the
Trust Agreement, the Sale and Servicing Agreement and, on behalf
of the Trust, under the Indenture and the Sale and Servicing
Agreement.
(C) The execution and delivery of the Trust Agreement,
the Sale and Servicing Agreement and, on behalf of the Trust, of
the Indenture and the Sale and Servicing Agreement, and the
performance by the Owner Trustee of its obligations under the
Trust Agreement and the Sale and Servicing Agreement, as well as
the performance by the Owner Trustee of its obligations on behalf
of the Trust under the Indenture and the Sale and Servicing
Agreement have been duly authorized by all necessary action of
the Owner Trustee and each has been duly executed and delivered
by the Owner Trustee.
(D) The Trust Agreement constitutes the valid and
binding obligations of the Owner Trustee enforceable against the
Owner Trustee in accordance with its terms.
(E) The execution and delivery by the Owner Trustee of
the Trust Agreement, the Sale and Servicing Agreement and, on
behalf of the Trust, of the Indenture and the Sale and Servicing
Agreement do not require any consent, approval or authorization
of, or any registration or filing with, any applicable
governmental authority.
(F) Each of the Notes has been duly executed and
delivered by the Owner Trustee, on behalf of the Trust.
(G) Neither the consummation by the Owner Trustee of
the transactions contemplated in the Sale and Servicing
Agreement, the Indenture or the Trust Agreement, nor the
fulfillment of the terms thereof by the Owner Trustee will
conflict with, result in a breach or violation of, or constitute
a default under any law or the charter, by-laws or other
organizational documents of the Owner Trustee or the terms of any
indenture or other agreement or instrument known to such counsel
and to which the Owner Trustee or any of its subsidiaries is a
party or is bound or any judgment, order or decree known to such
counsel to be applicable to the Owner Trustee or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over
the Owner Trustee or any of its subsidiaries.
(H) There are no actions, suits or proceedings pending
or, to the best of such counsel's knowledge, threatened against
the Owner Trustee (as owner trustee under the Trust Agreement or
in its individual capacity) before or by any governmental
authority that might materially and adversely affect the
performance by the Owner Trustee of its obligations under, or the
validity or enforceability of, the Trust Agreement or the Sale
and Servicing Agreement, as applicable.
(I) The execution, delivery and performance by the
Owner Trustee of the Sale and Servicing Agreement, the Indenture
or the Trust Agreement will not subject any of the property or
assets of the Trust or any portion thereof, to any lien created
by or resulting from any actions of the Owner Trustee that are
unrelated to the transactions contemplated in such agreements.
(J) The Trust has been duly formed and is validly
existing as a business trust under the Business Trust Statute.
The Trust Agreement authorizes the Trust to execute and deliver
the Trust Agreement, the Indenture and the Sale and Servicing
Agreement, to issue the Notes and the Certificates and to grant
the Trust Estate to the Trustee as security for the Notes.
(K) To the extent that Article 9 of the Uniform
Commercial Code as in effect in the State of Delaware (the
"Delaware UCC") is applicable (without regard to conflicts of
laws principles), and assuming that the security interest created
by the Indenture in the Receivables has been duly created and has
attached, upon the filing of a UCC-1 financing statement with the
Secretary of State of the State of Delaware the Indenture Trustee
will have a perfected security interest in such Receivables and
the proceeds thereof, and such security interest will be prior to
any other security interest that is perfected solely by the
filing of financing statements under the Delaware UCC, excluding
purchase money security interests under Section 9-312(4) of the
UCC and temporarily perfected security interests in proceeds
under Section 9-306(3) of the Delaware UCC.
(L) No re-filing or other action is necessary under the
Delaware UCC in order to maintain the perfection of such security
interest except for the filing of continuation statements at five
year intervals.
(M) Under Section 3805(b) of the Business Trust
Statute, no creditor of any Certificateholder shall have any
right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of the Trust
except in accordance with the terms of the Trust Agreement.
(N) Under Section 3805(c) of the Business Trust
Statute, and assuming that the Sale and Servicing Agreement
conveys good title to the Receivables to the Trust as a true sale
and not as a security arrangement, the Trust rather than the
Certificateholders is the owner of the Receivables.
(O) The Delaware Trustee is not required to hold legal
title to the Trust Estate in order for the Trust to qualify as a
business trust under the Act.
(P) The execution and delivery by the Owner Trustee of
the Trust Agreement and, on behalf of the Trust, the Indenture
and the Sale and Servicing Agreement do not require any consent,
approval or authorization of, or any registration or filing with,
any governmental authority of the State of Delaware, except for
the filing of the Certificate of Trust with the Secretary of
State.
(Q) Neither the consummation by the Owner Trustee of
the transactions contemplated in the Trust Agreement or, on
behalf of the Trust, the transactions contemplated in the Trust
Agreement, the Indenture and the Sale and Servicing Agreement nor
the fulfillment of the terms thereof by the Owner Trustee will
conflict with or result in a breach or violation of any law of
the State of Delaware.
Such opinion may contain such assumptions, qualifications
and limitations as are customary in opinions of this type and are
reasonably acceptable to counsel to the Underwriters. In rendering
such opinion, such counsel may state that they express no opinion as
to the laws of any jurisdiction other than the federal law of the
United States of America and the laws of the State of Delaware.
(vii) The favorable opinion, dated as of Closing Time, of
Xxxxx Xxxxxxxxxx, counsel for the Indenture Trustee, the Indenture
Collateral Agent, in form and substance satisfactory to counsel for
the Underwriters.
(viii) Such other opinions as may be requested by (i)
Xxxxx'x and S & P, which opinions shall also be for the benefit of the
Insurer and the Underwriters and (ii) the Insurer, which opinions
shall also be for the benefit of the Underwriters.
(c) At Closing Time there shall not have been, since the
date hereof or since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Seller, the
Servicer or TMSI and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representative shall have received a certificate signed by one or more
duly authorized officers of TMSI and the Seller, dated as of Closing
Time, to the effect that (i) there has been no such material adverse
change; (ii) the representations and warranties in Section 1(a) hereof
are true and correct in all material respects with the same force and
effect as though expressly made at and as of Closing Time; (iii) each
of TMSI and the Seller has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to
Closing Time; and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(d) At or prior to the delivery of the Prospectus
Supplement, the Representative shall have received from KPMG Peat
Marwick a letter dated as of such date and in form and substance
satisfactory to the Representative, to the effect that they have
carried out certain specified procedures, not constituting an audit,
with respect to (i) certain amounts, percentages and financial
information relating to the Servicer's servicing portfolio which are
included in the Prospectus Supplement and which are specified by the
Underwriter, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial
and other records of the Servicer, (ii) certain information regarding
the Receivables and the Receivables Files which are specified by the
Representative and contained in the Prospectus Supplement and setting
forth the results of such specified procedures and (iii) certain
information regarding the Receivables and the Receivables Files which
are specified by the Representative, as representative of the
Underwriters, and contained in the Current Report on Form 8-K
described in Section 5(1) hereof and setting forth the results of such
specified procedures.
(e) At Closing Time, the Representative shall have received
from the Trustee a certificate signed by one or more duly authorized
officers of the Indenture Trustee, dated as of Closing Time, as to the
due acceptance of the Indenture by the Indenture Trustee and the due
authentication of the Notes by the Indenture Trustee and such other
matters as the Representative shall request.
(f) At Closing Time, the Representative shall have received
a certificate signed by one or more duly authorized officers of the
Seller, the Servicer and TMSI dated as of Closing Time to the effect
that:
(i) the representations and warranties of TMSI, the
Seller and the Servicer in each of the Basic Documents to which
it is a party are true and correct in all material respects at
and on the Closing Date, with the same effect as if made on the
Closing Date;
(ii) each of TMSI, the Seller and the Servicer has
complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied in connection with the
sale and delivery of the Notes;
(iii) all statements and information contained in the
Prospectus Supplement under the caption "The Receivables" and
contained in the Prospectus under the captions "The Receivables,"
"The Seller," "TMS Auto Finance," and "The Money Store" are true
and accurate in all material respects and nothing has come to
such officer's attention that would lead him to believe that any
of the specified sections contains any untrue statement of a
material fact or omits to state any material fact necessary in
order to make the statements and information therein, in the
light of the circumstances under which they were made, not
misleading;
(iv) the information set forth in the Schedule of
Receivables required to be furnished pursuant to the Sale and
Servicing Agreement is true and correct in all material respects;
(v) the copies of the Charter and By-laws of the
Seller, the Servicer and TMSI attached to such certificate are
true and correct and, are in full force and effect on the date
thereof;
(vi) except as may otherwise be disclosed in the
Prospectus, there are no actions, suits or proceedings pending
(nor, to the best knowledge of such officers, are any actions,
suits or proceedings threatened), against or affecting the
Seller, the Servicer or TMSI, which if adversely determined,
individually or in the aggregate, would adversely affect the
Seller's or Servicer's obligations under any of the Basic
Documents to which it is a party;
(vii) each person who, as an officer or representative
of the Seller, the Servicer or TMSI, as the case may be, signed
(a) this Agreement, (b) the Sale and Servicing Agreement, (c) the
Trust Agreement, (d) the Purchase Agreement, (e) the Pricing
Agreement, (f) the Insurance Agreement, or (g) the
Indemnification Agreement or (h) any other document delivered
prior hereto or on the date hereof in connection with the
purchase described in this Agreement and the Sale and Servicing
Agreement, was, at the respective times of such signing and
delivery, and is now duly elected or appointed, qualified and
acting as such officer or representative;
(viii) except as otherwise set forth in the Sale and
Servicing Agreement, each of the Receivables referred to in the
Sale and Servicing Agreement was purchased by the Seller from TMS
Auto Finance, which acquired it from a Dealer;
(ix) a certified true copy of the resolutions of the
board of directors of TMSI and the Seller with respect to the
sale of the Notes subject to this Agreement and the Sale and
Servicing Agreement, which resolutions have not been amended and
remain in full force and effect are attached to such certificate;
(x) all payments received with respect to the Initial
Receivables after the Initial Cutoff Date, and certain payments
received with respect to the Precomputed Receivables on or prior
to the Initial Cutoff Date that relate to Scheduled Payments due
after the Cutoff Date, as set forth in the Sale and Servicing
Agreement, have been deposited in the Collection Account, and
are, as of the Closing Date, in the Collection Account;
(xi) each of TMSI, the Seller and the Servicer has
complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied in connection with the
issuance, sale and delivery of the Receivables and the Notes;
(xii) all statements contained in the Prospectus with
respect to TMSI, the Seller and the Servicer are true and
accurate in all material respects and nothing has come to such
officer's attention that would lead such officer to believe that
the Prospectus contains any untrue statement of a material fact
or omits to state any material fact;
(g) On or before the Closing Time the Seller shall have
delivered to the Trustee, to hold in trust for the benefit of the
holders of the Notes, Initial Receivables with an aggregate Principal
Balance as of the Initial Cutoff Date of approximately $68,500,000.
TMSI and the Seller shall, immediately following the sale of the
Notes, cause to be deposited with the Indenture Trustee, as collateral
agent, for deposit (i) in the Pre-Funding Account (as defined in the
Prospectus Supplement), cash in an amount equal to the sum of
approximately $21,500,000 and (ii) in the Capitalized Interest Account
(as defined in the Prospectus Supplement), cash in an amount equal to
a sum satisfactory to the Insurer.
(h) The Note Policy shall have been delivered to the
Trustee.
(i) At Closing Time, the Class A-1 Notes shall have been
rated "A-1+" by S&P and "P-1" by Xxxxx'x, and the Class A-2 Notes, the
Class A-3 Notes, shall have been rated "AAA" by S & P and "AAA" by
Xxxxx'x and neither S&P nor Xxxxx'x shall have placed the Notes under
surveillance or review with possible negative implications.
(j) At Closing Time, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
delivery of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by TMSI, the
Seller and the Servicer in connection with the issuance and sale of
the Notes as herein contemplated shall be satisfactory in form and
substance to TMSI and counsel for the Underwriters.
(k) On or before the Closing Time TMSI shall have delivered
to the Representative a Current Report on Form 8-K containing a
detailed description of the Receivables actually being delivered to
the Owner Trustee and pledged to the Indenture Trustee at Closing
Time, in form and substance satisfactory to the Representative.
(l) The Representative shall have received evidence
satisfactory to it that, on or before the Closing Date, UCC-1
financing statements have been or are being filed in the appropriate
filing offices reflecting the transfer of the interest in the
Receivables to the Owner Trustee on behalf of the Trust and the
proceeds thereof to the Trust and the grant of the security interest
by the Trust in the Receivables and the proceeds thereof to the
Indenture Trustee.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representative by notice to the Seller at any time at or prior to Closing
time, and such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
Section 6. INDEMNIFICATION.
(a) TMSI and the Seller jointly and severally agree to indemnify and
hold harmless each of the Underwriters and each person, if any, who controls
either of the Underwriters within the meaning of Section 15 of the 1933 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any untrue statement
or omission described in clause (i) above, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of TMSI; and
(iii) against any and all expense whatsoever, as reasonably
incurred (including, subject to Section 6(c) hereof, the reasonable
fees and disbursements of counsel chosen by such Underwriter) in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any untrue
statement or omission described in clause (i) above, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with the information referred to in clauses (w), (x), (y)
and (z) of the immediately following paragraph; provided, further, such
indemnity with respect to any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with the
information referred to in clauses (w), (x), (y) and (z) of the immediately
following paragraph and contained in the Prospectus or any preliminary
prospectus shall not inure to the benefit of either Underwriter (or person
controlling such Underwriter) from whom the person suffering any such loss,
claim, damage or liability purchased the Notes which are the subject thereof if
such person did not receive a copy of the Prospectus at or prior to the
confirmation of the sale of such Notes or to such person in any case where such
delivery is required by the 1933 Act and the untrue statement or omission of a
material fact contained in any preliminary prospectus was corrected in the
Prospectus and the Prospectus was delivered to such Underwriter in a timely
manner in accordance with Section 3(d).
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless TMSI and the Seller, their directors, each of TMSI's and
Seller's officers who signed the Registration Statement, and each person, if
any, who controls TMSI or the Seller within the meaning of Section 15 of the
1933 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, contained in written information furnished by
such Underwriter through the Representative specifically for use in the
Prospectus Supplement, it being understood and agreed that the only such
information is contained in (w) the seventh paragraph on the inside cover
(discussing the risk of a lack of secondary trading) of the Prospectus
Supplement (or any amendment or supplement thereto), (x) the first paragraph
under "Risk Factors--Limited Liquidity" of the Prospectus, (y) the information
contained under "Underwriting" of the Prospectus Supplement, and (z) any
Computational Materials prepared by such Underwriter, except to the extent of
any errors in the Computational Materials that are caused by errors in the pool
information provided by the Company to the applicable Underwriter. The parties
hereto agree that no Underwriter shall be under any liability to the Company,
the Originators or any other person identified in this paragraph (b) for
Computational Materials prepared by any other Underwriter.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve the
indemnifying party from any liability that it may have to any indemnified party
except to the extent that it has been prejudiced in any material respect by such
failure or from any liability that it may have otherwise than under this Section
6. In case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses other than the reasonable costs of investigation subsequently
incurred in connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence, (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii). After such notice from the indemnifying party to
such indemnified party, the indemnifying party will not be liable for the costs
and expenses of any settlement of such action effected by such indemnified party
without the consent of the indemnifying party. No indemnifying party shall,
without the prior written consent of the indemnified party, which consent shall
not be unreasonably withheld, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified party unless
such settlement includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action.
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, TMSI and the Seller
jointly and severally, on the one hand, and the Underwriters, on the other hand,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by TMSI
and the Seller jointly and severally, on the one hand, and the Underwriters, on
the other hand (i) in such proportion as is appropriate to reflect the relative
benefits received by TMSI and the Seller on the one hand and the Underwriters on
the other from the sale of the Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of TMSI and the Seller on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by TMSI and
the Seller on the one hand and the Underwriters on the other shall be deemed to
be in such proportion that the Underwriters are responsible for that portion
represented by the excess, if any, of the purchase price received by the
Underwriters for the sale of the Notes over the purchase price paid by the
Underwriters for the Notes (the "Spread") (or, with respect to Computational
Materials furnished by an Underwriter, the Spread received by such Underwriter
with respect to the principal amount of Notes set forth next to such
Underwriter's name on Schedule I hereto; and TMSI and the Seller shall be
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by TMSI or the Seller or by any Underwriter
through the Representative and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this Section 7. Notwithstanding the
provisions of this Section 7, the Underwriters shall not be required to
contribute any amount in excess of the amount by which the Spread exceeds the
amount of any damages which the Underwriters have otherwise been required to pay
in respect of such losses, liabilities, claims, damages and expenses. For
purposes of this Section 7, each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Underwriters and each respective director of the Seller,
each officer of the Seller who signed the Registration Statement, and each
respective person, if any, who controls the Seller within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Seller.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers of
TMSI and the Seller submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
the Underwriters or any controlling person thereof, or by or on behalf of TMSI
or the Seller, and shall survive delivery of the Notes to the Underwriters.
Section 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice to TMSI
and the Seller, at any time at or prior to Closing Time (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Registration Statement or Prospectus, any
change, or any development involving a prospective change, in or affecting
particularly the business or properties of TMSI, the Servicer or the Seller
considered as one entity or the Insurer which, in the Representative's
reasonable judgment, materially impairs the investment quality of the Notes;
(ii) if there has occurred any downgrading in the rating of the claims-paying
ability of the Insurer by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the 0000 Xxx) which,
in the reasonable judgment of the Representative, materially impairs the
investment quality or marketability of the Notes or if the claims-paying ability
of the Notes or the Insurer has been put on the "watch list" of any such rating
organization with negative implications; (iii) if there has occurred any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such exchange or
by any governmental authority; (iv) if any banking moratorium has been declared
by Federal or New York authorities; (v) any suspension or limitation of trading
of any securities of TMSI on any exchange or in the over-the-counter market; or
(vi) if there has occurred any outbreak or escalation of major hostilities in
which the United States of America is involved, any declaration of war by
Congress, or any other substantial national or international calamity or
emergency if, in the Representatives judgment, the effects of any such outbreak,
escalation, declaration, calamity, or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the Notes
or the Certificates.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof.
Section 10. COMPUTATIONAL MATERIALS. (a) It is understood that any
Underwriter may prepare and provide to prospective investors certain
Computational Materials (as defined below) in connection with the Company's
offering of the Notes, subject to the following conditions:
(i) Each Underwriter shall comply with all applicable laws and
regulations in connection with the use of Computational Materials including the
No-Action Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated and Xxxxxx
Structured Asset Corporation, as made applicable to other issuers and
underwriters by the Commission in response to the request of the Public
Securities Association dated May 24, 1994, and the No-Action Letter of February
17, 1995 issued by the Commission to the Public Securities Association
(collectively, the "Xxxxxx/PSA Letters").
(ii) As used herein, "Computational Materials" and the term "ABS Term
Sheets" shall have the meanings given such terms in the Xxxxxx/PSA Letters, but
shall include only those Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of an Underwriter.
(iii) Each Underwriter shall provide TMSI and the Seller with
representative forms of all Computational Materials prior to their first use, to
the extent such forms have not previously been approved by TMSI and the Seller
for use by such Underwriter. The Underwriter shall provide to TMSI and the
Seller, 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 TMSI and the Seller 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
TMSI and the Seller 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
TMSI and the Seller of all Computational Materials required to be delivered in
accordance with subsection (a)(iii) above, TMSI and the Seller 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 TMSI and the Seller to comply with is agreement set
forth in Section 11(b) to file the Computational Materials by the time specified
therein.
(b) TMSI and the Seller shall file the Computational Materials (if
any) provided to it by each Underwriter under Section 11(a)(iii) with the
Commission pursuant to a Current Report on Form 8-K no later than 10:00 a.m. on
the date required pursuant to the Xxxxxx/PSA Letters.
Section 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Representative shall be directed to Salomon Brothers Inc [390 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Finance Group (fax: (000) 000-0000);
and notices to TMSI or the Seller shall be directed to it at 0000 Xxxxxx Xxxxxx,
Xxxxx, Xxx Xxxxxx 00000, Attention: Executive Vice President (fax: (908)
000-0000).
Section 12. PARTIES. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Underwriters, TMSI, the
Seller and their respective successors. Nothing expressed or mentioned in this
Agreement or the Pricing Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters, TMSI, the Seller and
their respective successors and the controlling persons and officers and
directors referred to in Section 6 and 7 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or with
respect to this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and the Pricing Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Underwriters, TMSI, the Seller and their respective successors,
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Notes from any Underwriter shall be deemed to be a
successor by reason merely of such purchase. TMSI and the Seller shall be
jointly and severally liable for all obligations incurred under this Agreement
and the Pricing Agreement. Section 13. GOVERNING LAW AND TIME. This Agreement
and the Pricing Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to principles of conflicts of
laws, applicable to agreements made and to be performed in said State. Unless
otherwise set forth herein, specified times of day refer to New York time.
Section 14. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to TMSI and the Seller a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters, the Seller and TMSI in accordance with its
terms.
Very truly yours,
TMS AUTO HOLDINGS, INC.
By:/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
THE MONEY STORE INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
CONFIRMED AND ACCEPTED, as of the date first above written:
SALOMON BROTHERS INC
FIRST UNION CAPITAL MARKETS CORP.
By: SALOMON BROTHERS INC
By:________________________
Name:
Title:
SCHEDULE I
PRINCIPAL INITIAL
UNDERWRITER CLASS AMOUNT OF NOTES
Salomon Brothers Inc A-1 $9,722,222
First Union Capital Markets Corp. A-1 $7,777,778
Salomon Brothers Inc A-2 $24,722,222
First Union Capital Markets Corp. A-2 $19,777,778
Salomon Brothers Inc A-3 $15,555,556
First Union Capital Markets Corp. A-3 $12,444,444
Exhibit A
THE MONEY STORE INC.
TMS AUTO HOLDINGS, INC.
The Money Store Auto Trust 1997-4
$17,500,000 Class A-1 5.90875% Asset Backed Notes
$44,500,000 Class A-2 6.35% Asset Backed Notes
$28,000,000 Class A-3 6.46% Asset Backed Notes
PRICING AGREEMENT
December 16, 1997
SALOMON BROTHERS INC
as Representative ("Representative")
of the several Underwriters
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated December 16,
1997 (the "Underwriting Agreement"), relating to $17,500,000 aggregate principal
amount of Class A-1 5.90875% Asset Backed Notes (the "Class A-1 Notes")
$44,500,000 aggregate principal amount of Class A-2 6.35% Asset Backed Notes
(the "Class A-2 Notes"), $28,000,000 aggregate principal amount of Class A-3
6.46% Asset Backed Notes (the "Class A-3 Notes" and, with the Class A-1 Notes
and the Class A-2 Notes the "Notes"), all issued by The Money Store Auto Trust
1997-4 (the "Trust".)
Pursuant to Section 2 of the Underwriting Agreement, The Money Store
Inc. ("TMSI") and TMS Auto Holdings, Inc. (the "Seller") agree with the
Representative on behalf of the Underwriters identified in Schedule I of the
Underwriting Agreement as follows:
1. The Class A-1 Interest Rate shall be 5.90875% per annum.
2. The Class A-2 Interest Rate shall be 6.35% per annum.
3. The Class A-3 Interest Rate shall be 6.46% per annum.
4. The purchase price for the Class A-1 Notes shall be 99.75% of the
initial principal amount of the Class A-1 Notes.
5. The purchase price for the Class A-2 Notes shall be 99.75% of the
initial principal amount of the Class A-2 Notes.
6. The purchase price for the Class A-3 Notes shall be 99.75% of the
initial principal amount of the Class A-3 Notes.
7. The Notes shall be offered from time to time in negotiated
transactions or otherwise, at prices determined at the time of sale.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Seller a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, TMSI and the Seller in accordance with its terms.
Very truly yours,
TMS AUTO HOLDINGS, INC.
By:
Name:
Title:
THE MONEY STORE INC.
By:
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
SALOMON BROTHERS INC
FIRST UNION CAPITAL MARKETS CORP.
By: SALOMON BROTHERS INC
By:
Name:
Title:
