THE MONEY STORE INC.
TMS AUTO HOLDINGS, INC.
The Money Store Auto Trust 1997-2
$160,000,000 Class A-1 6.17% Asset Backed Notes
$60,500,000 Class A-2 6.495% Asset Backed Notes
$4,500,000 6.64% Asset-Backed Certificates
UNDERWRITING AGREEMENT
June 19, 1997
XXXXX XXXXXX INC.
as Representative (the "Representative")
of the several Underwriters named
herein
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Money Store Inc., a New Jersey corporation ("TMSI") and TMS Auto
Holdings, Inc., a Delaware corporation (the "Seller") propose to cause THE MONEY
STORE AUTO TRUST 1997-2 (the "Trust") to issue and sell $160,000,000 principal
amount of its Class A-1 6.17% Asset Backed Notes (the "Class A-1 Notes"), and
$60,500,000 principal amount of its Class A-2 6.495% Asset Backed Notes (the
"Class A-2 Notes" and, together with the Class A-1 Notes, the "Notes") and
$4,500,000 principal amount of its 6.64% Asset Backed Certificates (the
"Certificates" and, together with the Notes, the "Securities") 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 May 31, 1997 (the "Purchase Agreement") between the Seller and TMS
Auto Finance, Inc., all monies received under the Initial Receivables after,
with respect to each Initial Receivable, the later of (x) May 31, 1997 and (y)
the date of its origination (the "Initial Cutoff Date"), additional receivables
generated pursuant to motor vehicle retail installment sale contracts (the
"Subsequent Receivables," and together with the Initial Receivables, the
"Receivables") to be conveyed to the Trust subsequent to the date of issuance of
the Securities 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"), a
certificate guarantee insurance policy issued by the Insurer to the Owner
Trustee (as defined herein) for the benefit of the Certificateholders (the
"Certificate Policy" and, with the Note Policy, the "Policies") 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 May 31, 1997 (the "Sale and
Servicing Agreement") among the Trust, the Seller, TMSI and TMS Auto Finance
Inc., as servicer (the "Servicer"). Pursuant to the Sale and Servicing
Agreement, the Seller will sell the Receivables to the Trust and the Servicer
will service the Receivables on behalf of the Trust. In addition, pursuant to
the Sale and Servicing Agreement, the Servicer will agree to perform certain
administrative tasks imposed on the Trust under the Indenture. The Notes will be
issued pursuant to the Indenture to be dated as of May 31, 1997 (as amended and
supplemented from time to time, the "Indenture"), between the Trust and The
Chase Manhattan Bank, a New York banking corporation (the "Indenture Trustee"
and in its capacity as collateral agent, the "Indenture Collateral Agent"). The
Certificates, each representing a fractional undivided interest in the Trust,
will be issued pursuant to a Trust Agreement to be dated as of May 31, 1997,
between the Seller and Bankers Trust (Delaware), as owner trustee (the "Owner
Trustee"). The Policies will be issued pursuant to the Insurance Agreement dated
as of May 31, 1997 by and among the Insurer, TMSI, the Seller, the Servicer, the
Trust, the Indenture Trustee and 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 June 26, 1997 (the
"Indemnification Agreement").
Prior to the delivery of the Securities 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 Securities 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 Securities 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 Securities 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 Securities
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 Securities which
differs from the Prospectus on file at the Commission at the time the
Registration Statement became effective, in which case at the time it is
first provided to the Underwriters for such use) and at Closing Time
referred to in Section 2 hereof, will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to TMSI and the Seller in writing by
any Underwriter through the Representative expressly for use in the
Registration Statement or Prospectus and provided further, that the Company
makes no representations or warranties as to any information in any
Computational Materials (as defined in Section 11 below) provided by any
Underwriter to the Company pursuant to Section 11, except to the extent of
any errors in the Computational Materials that are caused by errors in the
pool information provided by the Company to the applicable Underwriter. The
conditions to the use by TMSI and the Seller of a registration statement on
Form S-3 under the 1933 Act, as set forth in the General Instructions to
Form S-3, have been satisfied with respect to the Registration Statement
and the Prospectus.
(iii) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Seller, the Servicer, TMSI and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, which would have a material adverse effect on the ability of
each of TMSI, the Seller and the Servicer to perform its obligations under
the Basic Documents (as defined below) to which it is a party and (B) there
have been no transactions entered into by the Seller, the Servicer, TMSI or
any of its subsidiaries, other than those in the ordinary course of
business, which would have a material adverse effect on the ability of the
Seller, the Servicer or TMSI to perform its obligations under this
Agreement, the Pricing Agreement, the Sale and Servicing Agreement, the
Trust Agreement, the Purchase Agreement, the Indemnification Agreement and
the Insurance Agreement (this Agreement, the Pricing Agreement, the Sale
and Servicing Agreement, the Trust Agreement, the Purchase Agreement, the
Indemnification Agreement and the Insurance Agreement being herein referred
to, collectively, as the "Basic Documents") to which it is a party.
(iv) Each of TMSI, the Seller and the Servicer has been duly
organized and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation with all requisite power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the Basic Documents to which it is a party; and each is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a material
adverse effect on, (A) the ability of any of TMSI, the Seller or the
Servicer to perform its obligations under the Basic Documents to which it
is a party, or (B) the business, properties, financial position, operations
or results of operations of TMSI, the Seller or the Servicer.
(v) Any person who signed this Agreement on behalf of TMSI or the
Seller was, as of the time of such signing and delivery, and is now duly
elected or appointed, qualified and acting, and the Agreement, as so
executed, is duly and validly authorized, executed, and constitutes the
valid, legal and binding agreement of each of TMSI and the Seller,
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity regardless of whether such enforcementis 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
Certificates, when duly and validly executed by the Owner Trustee,
authenticated and delivered in accordance with the Trust Agreement, and
delivered and paid for pursuant hereto will be validly issued and
outstanding and entitled to the benefits of the Trust Agreement. The
Securities 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 or the Certificates, 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 the Certificates 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 or the Certificates, nor the
consummation of any other of the transactions herein contemplated, nor the
fulfillment of the terms of the Notes or the Certificates 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 or the Certificates, (2)
seeking to prevent the issuance of the Notes or the Certificates or the
consummation of any of the transactions contemplated by the Basic
Documents, (3) which would materially and adversely affect the performance
by 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 the Certificates or (4) seeking to
adversely affect the federal income tax attributes of the Notes or the
Certificates 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 or the
Certificates) 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 Securities 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 Securities,
the Underwriters will have good and marketable title to the Securities 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 Securities 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 Securities to the Underwriters. In the event that the
initial remittance rates and prices for the Securities 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 June 26, 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 Securities 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 Certificates
registered in the name of Cede & Co., the nominee of the Depository Trust
Company ("DTC").
For purposes of this Agreement, all Securities 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 and Definitive Certificates will be available in
exchange for DTC Securities only under the limited circumstances specified in
the Indenture and Trust Agreement. The DTC Securities 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 Securities 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 Securities 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 Securities 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 Securities 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 Securities
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 Securities 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 or Certificates 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 or other Certificates 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 Securities 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 Securities; 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," "The Certificates"
and "Description of the Purchase Agreements and the
Trust Documents" and the information in the
Prospectus Supplement under "Description of the
Notes" and "Description of the Certificates" insofar
as they constitute summaries of certain provisions of
the Notes, the Certificates, the Indenture and the
Trust Agreement, summarizes fairly such provisions.
(D) The information in
the base Prospectus under "Prospectus Summary -- Tax
Status," "Prospectus Summary -- ERISA Considerations"
"Federal Income Tax Consequences," and "ERISA
Considerations" and in the Prospectus Supplement
under "Summary of Terms -- Tax Status," "Summary of
Terms -- ERISA Considerations," "Certain Federal
Income Tax Consequences," and "ERISA Considerations,"
to the extent that they constitute matters of
federal, New York or California law, summaries of
legal matters, documents or proceedings or legal
conclusions, has been reviewed by them and is correct
in all material respects.
(E) The Seller and the
Servicer have been duly incorporated and are
validly existing and in good standing under the
laws of the State of Delaware.
(F) The Seller has the
power to engage in the transactions contemplated by
each of this Agreement, the Pricing Agreement, the
Indemnification Agreement and the Trust Agreement,
and the Seller and the Servicer have the power to
engage in the transactions contemplated by each of
the Sale and Servicing Agreement, the Insurance
Agreement and the Purchase Agreement, and have all
requisite power, authority and legal right to execute
and deliver this Agreement, the Pricing Agreement,
the Sale and Servicing Agreement, the Purchase
Agreement, the Indemnification Agreement, the
Insurance Agreement and the Trust Agreement, as the
case may be (and any other documents delivered in
connection therewith) and to perform
and observe the terms and conditions of such
instruments.
(G) Each of the Sale
and Servicing Agreement, the Insurance Agreement and
the Purchase Agreement has been duly authorized,
executed and delivered by the Seller and the
Servicer, and each of the Trust Agreement, the
Indemnification Agreement, the Pricing Agreement and
this Agreement has been duly authorized, executed and
delivered by the Seller. Assuming due authorization,
execution and delivery by the other parties thereto,
the Sale and Servicing Agreement, the Purchase
Agreement, the Indemnification Agreement, the
Insurance Agreement, the Trust Agreement, the Pricing
Agreement and this Agreement are legal, valid and
binding agreements enforceable in accordance with
their respective terms against the Seller and the
Servicer, as the case may be, subject (a) to the
effect of bankruptcy, insolvency, reorganization,
moratorium and similar laws relating to or affecting
creditors' rights generally and court decisions with
respect thereto, (b) to the understanding that no
opinion is expressed as to the application of
equitable principles in any proceeding, whether at
law or in equity, and (c) to limitations of public
policy under applicable securities laws as to rights
of indemnity and contribution thereunder.
(H) The Receivables are
chattel paper as defined in the UCC as in effect
in the State of California.
(I) The Seller is not,
and will not as a result of the offer and sale
of the Securities 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 Securities
have been duly taken or made.
(K) The Trust Agreement
need not be qualified under the Trust Indenture
Act and the Trust is not required to register under
the Investment Company Act.
(L) The Indenture has
been duly qualified under the Trust Indenture
Act.
Stroock & Stroock & Xxxxx LLP
shall additionally provide an opinion, in form and substance
satisfactory to the Rating Agencies, that if a court concludes
that the transfer of the Receivables from the Seller to the
Owner Trustee on behalf of the Trust is a sale, the interest
of the Trust in the Receivables, the interest of the Trust in
the Seller's security interests in the Financed Vehicles
securing the Receivables and the proceeds of each of the
foregoing will be perfected upon the filing of appropriate
UCC-1 financing statements and, if a court concludes that such
transfer is not a sale, the Sale and Servicing Agreement
constitutes a grant by the Seller to the Trust of a valid
security interest in the Receivables, the interest of the
Trust in the Seller's security interests in the Financed
Vehicles securing the Receivables and the proceeds of each of
the foregoing, which security interest will be perfected upon
the filing of appropriate UCC-1 financing statements.
Stroock & Stroock & Xxxxx LLP
shall additionally provide an opinion, in form and substance
satisfactory to the Rating Agencies, regarding the creation
and attachment of a security interest in the Collateral
(including, without limitation, the Trust Estate, as to which
such opinion shall also cover the perfection and priority of
the Indenture Collateral Agent's interest therein) in favor of
the Indenture Trustee on behalf of the Noteholders. Such
opinions may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are
reasonably acceptable to counsel to the Underwriters. In
rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other
than the federal law of the United States of America and the
laws of the States of New York and California.
In rendering its opinion, Stroock
& Stroock & Xxxxx LLP shall additionally state that nothing
has come to its attention that has caused it to believe that
the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus, at the Representation Date (unless the
term "Prospectus" refers to a prospectus which has been
provided to the Underwriters by TMSI for use in connection
with the offering of the Securities 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 Securities, 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 Securities, 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 Policies, the
Indemnification Agreement and the Insurance Agreement
have been duly authorized, executed and delivered by
the Insurer.
(C) The Policies, 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) Each 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
each 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 Securities,
to the Prospectus forming a part of the Registration Statement
on Form S-3 (No. 333-14075) filed by the Company with the
Securities and Exchange Commission and declared effective on
December 9, 1996, or as of the date of counsel's opinion, the
information set forth under the captions "The Insurer" and
"The Policies" in the Prospectus Supplement, insofar as such
statements constitute a description of the Policies,
accurately summarize the Policies(such counsel not being
required to express an opinion with respect to any financial
statements or other financial information contained or
referred to therein). Such statement may be given with the
understanding that such information is limited and does not
purport to provide the scope of disclosure required to be
included in a prospectus with respect to a Registrant under
the Securities Act of 1933, as amended, in connection with the
public offer and sale of securities of such registrant.
In rendering this opinion, such
counsel may rely, as to matters of fact, on certificates of
responsible officers of the Insurer, the Trustee and public
officials. Such opinion may assume the due authorization,
execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the
Insurer.
(vi) The favorable opinion, dated
as of Closing Time, of Xxxxxxxx, Xxxxxx & Finger, in form and
substance satisfactory, to counsel for the Underwriters, to
the effect that:
(A) The Owner Trustee
is a Delaware banking corporation duly incorporated
and organized and validly existing under the laws of
the State of Delaware.
(B) The Owner Trustee
has the full corporate trust power to accept the
office of owner trustee under the Trust Agreement and
to enter into and perform its obligations under the
Trust Agreement, the Sale and Servicing Agreement
and, on behalf of the Trust, under the Indenture and
the Sale and Servicing Agreement.
(C) The execution and
delivery of the Trust Agreement, the Sale and
Servicing Agreement and, on behalf of the Trust, of
the Indenture and the Sale and Servicing Agreement,
and the performance by the Owner Trustee of its
obligations under the Trust Agreement and the Sale
and Servicing Agreement, as well as the performance
by the Owner Trustee of its obligations on behalf of
the Trust under the Indenture and the Sale and
Servicing Agreement have been duly authorized by all
necessary action of the Owner Trustee and each has
been duly executed and delivered by the Owner
Trustee.
(D) The Trust Agreement
constitutes the valid and binding obligations of the
Owner Trustee enforceable against the Owner Trustee
in accordance with its terms.
(E) The execution and
delivery by the Owner Trustee of the Trust Agreement,
the Sale and Servicing Agreement and, on behalf of
the Trust, of the Indenture and the Sale and
Servicing Agreement do not require any consent,
approval or authorization of, or any registration or
filing with, any applicable governmental authority.
(F) Each of the Notes
and Certificates 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) Assuming that the
Certificates have delivered to the Underwriter
and paid for pursuant to the Underwriting
Agreement, the Certificates have been validly
issued and are entitled to the benefits of the
Trust Agreement.
(L) 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.
(M) 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.
(N) 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.
(O) 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.
(P) 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.
(Q) 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.
(R) Neither the
consummation by the Owner Trustee of the transactions
contemplated in the Trust Agreement or, on behalf of
the Trust, the transactions contemplated in the Trust
Agreement, the Indenture and the Sale and Servicing
Agreement nor the fulfillment of the terms thereof by
the Owner Trustee will conflict with or result in a
breach or violation of any law of the State of
Delaware.
Such opinion may contain such assumptions,
qualifications and limitations as are customary in opinions
of this type and are reasonably acceptable to counsel to the
Underwriters. In rendering such opinion, such counsel may state that
they express no opinion as to the laws of any jurisdiction other than
the federal law of the United States of America and the laws of the
State of Delaware.
(vii) The favorable opinion,
dated as of Closing Time, of Xxxxx Xxxxxxxxxx, counsel for the
Indenture Trustee, the Indenture Collateral Agent, in form and
substance satisfactory to counsel for the Underwriters.
(viii) Such other opinions as may
be requested by (i) the Rating Agencies, which opinions shall
also be for the benefit of the Insurer and the Underwriters
and (ii) the Insurer, which opinions shall also be for the
benefit of the Underwriters.
(c) At Closing Time there shall not have been, since
the date hereof or since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Seller, the
Servicer or TMSI and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representative shall have received a certificate signed by one or more
duly authorized officers of TMSI and the Seller, dated as of Closing
Time, to the effect that (i) there has been no such material adverse
change; (ii) the representations and warranties in Section 1(a) hereof
are true and correct in all material respects with the same force and
effect as though expressly made at and as of Closing Time; (iii) each
of TMSI and the Seller has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to
Closing Time; and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(d) At or prior to the delivery of the Prospectus
Supplement, the Representative shall have received from KPMG Peat
Marwick a letter dated as of such date and in form and substance
satisfactory to the Representative, to the effect that they have
carried out certain specified procedures, not constituting an audit,
with respect to (i) certain amounts, percentages and financial
information relating to the Servicer's servicing portfolio which are
included in the Prospectus Supplement and which are specified by the
Underwriter, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial
and other records of the Servicer, (ii) certain information regarding
the Receivables and the Receivables Files which are specified by the
Representative and contained in the Prospectus Supplement and setting
forth the results of such specified procedures and (iii) certain
information regarding the Receivables and the Receivables Files which
are specified by the Representative, as representative of the
Underwriters, and contained in the Current Report on Form 8-K described
in Section 5(1) hereof and setting forth the results of such specified
procedures.
(e) At Closing Time, the Representative shall have
received from the Trustee a certificate signed by one or more duly
authorized officers of the Indenture Trustee, dated as of Closing Time,
as to the due acceptance of the Indenture by the Indenture Trustee and
the due authentication of the Notes by the Indenture Trustee and such
other matters as the Representative shall request.
(f) At Closing Time, the Representative shall have
received a certificate signed by one or more duly authorized officers
of the Seller, the Servicer and TMSI dated as of Closing Time to the
effect that:
(i) the representations and
warranties of TMSI, the Seller and the Servicer in each of the
Basic Documents to which it is a party are true and correct in
all material respects at and on the Closing Date, with the
same effect as if made on the Closing Date;
(ii) each of TMSI, the Seller and
the Servicer has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied in connection with the sale and
delivery of the Securities;
(iii) all statements and
information contained in the Prospectus Supplement under the
caption "The Receivables" and contained in the base Prospectus
under the captions "The Receivables," "The Seller," "TMS Auto
Finance," and "The Money Store" are true and accurate in all
material respects and nothing has come to such officer's
attention that would lead him to believe that any of the
specified sections contains any untrue statement of a material
fact or omits to state any material fact necessary in order to
make the statements and information therein, in the light of
the circumstances under which they were made, not misleading;
(iv) the information set forth in
the Schedule of Receivables required to be furnished
pursuant to the Sale and Servicing Agreement is true
and correct in all material respects;
(v) the copies of the Charter and
By-laws of the Seller, the Servicer and TMSI attached to such
certificate are true and correct and, are in full force and
effect on the date thereof;
(vi) except as may otherwise be
disclosed in the Prospectus, there are no actions, suits or
proceedings pending (nor, to the best knowledge of such
officers, are any actions, suits or proceedings threatened),
against or affecting the Seller, the Servicer or TMSI, which
if adversely determined, individually or in the aggregate,
would adversely affect the Seller's or Servicer's obligations
under any of the Basic Documents to which it is a party;
(vii) each person who, as an
officer or representative of the Seller, the Servicer or TMSI,
as the case may be, signed (a) this Agreement, (b) the Sale
and Servicing Agreement, (c) the Trust Agreement, (d) the
Purchase Agreement, (e) the Pricing Agreement, (f) the
Insurance Agreement, or (g) the Indemnification Agreement or
(h) any other document delivered prior hereto or on the date
hereof in connection with the purchase described in this
Agreement and the Sale and Servicing Agreement, was, at the
respective times of such signing and delivery, and is now duly
elected or appointed, qualified and acting as such officer or
representative;
(viii) except as otherwise set forth
in the Sale and Servicing Agreement, each of the Receivables
referred to in the Sale and Servicing Agreement was purchased
by the Seller from TMS Auto Finance, which acquired it from a
Dealer;
(ix) a certified true copy of the
resolutions of the board of directors of TMSI and the Seller
with respect to the sale of the Securities 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 Securities;
(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 and Certificates, Initial Receivables with an
aggregate Principal Balance as of the Initial Cutoff Date of
approximately $185,927,062.83. TMSI and the Seller shall, immediately
following the sale of the Securities, 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 $30,419,091.02 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 Policies shall have been delivered to the
Trustee.
(i) At Closing Time, the Notes, and the Certificates
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 or
the Certificates 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
Securities 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 or Certificates which are the
subject thereof if such person did not receive a copy of the Prospectus at or
prior to the confirmation of the sale of such Notes or Certificates to such
person in any case where such delivery is required by the 1933 Act and the
untrue statement or omission of a material fact contained in any preliminary
prospectus was corrected in the Prospectus 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 Securities 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 Securities over the purchase price paid by the
Underwriters for the Securities (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 Securities 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 Securities 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 or
the Certificates; (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 the
Certificates 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 Securities, subject to the following conditions:
(i) Each Underwriter shall comply with all applicable laws and regulations
in connection with the use of Computational Materials including the No-Action
Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx Acceptance
Corporation I, Xxxxxx, Peabody & Co. Incorporated and Xxxxxx Structured Asset
Corporation, as made applicable to other issuers and underwriters by the
Commission in response to the request of the Public Securities Association dated
May 24, 1994, and the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (collectively, the "Xxxxxx/PSA
Letters").
(ii) As used herein, "Computational Materials" and the term "ABS Term
Sheets" shall have the meanings given such terms in the Xxxxxx/PSA Letters, but
shall include only those Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of an Underwriter.
(iii) Each Underwriter shall provide the Company with representative forms
of all Computational Materials prior to their first use, to the extent such
forms have not previously been approved by the Company for use by such
Underwriter. The Underwriter shall provide to the Company, for filing on Form
8-K as provided in Section 11(b), copies of all Computational Materials that are
to be filed with the Commission pursuant to the Xxxxxx/PSA Letters. The
Underwriter may provide copies of the foregoing in a consolidated or aggregated
form. All Computational Materials described in this subsection (a)(iii) must be
provided to the Company not later than 10:00 a.m. New York time one business day
before filing thereof is required pursuant to the terms of this Agreement.
(iv) If an Underwriter does not provide any Computational Materials to the
Company pursuant to subsection (a)(iii) above, such Underwriter shall be deemed
to have represented, as of the Closing Date, that it did not provide any
prospective investors with any information in written or electronic form in
connection with the offering of the Certificates that is required to be filed
with the Commission in accordance with the Xxxxxx/PSA Letters.
(v) In the event of any delay in the delivery by any Underwriter to the
Company of all Computational Materials required to be delivered in accordance
with subsection (a)(iii) above, the Company shall have the right to delay the
release of the Prospectus to investors or to any Underwriter, to delay the
Closing Date and to take other appropriate actions in each case as necessary in
order to allow the Company to comply with is agreement set forth in Section
11(b) to file the Computational Materials by the time specified therein.
(b) The Company shall file the Computational Materials (if any) provided to
it by each Underwriter under Section 11(a)(iii) with the Commission pursuant to
a Current Report on Form 8-K no later than 10:00 a.m. on the date required
pursuant to the Xxxxxx/PSA Letters.
Section 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Representative shall be directed to Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Asset Finance Group (fax: (000) 000-0000); and
notices to TMSI or the Seller shall be directed to it at 0000 Xxxxxx Xxxxxx,
Xxxxx, Xxx Xxxxxx 00000, Attention: Executive Vice President (fax: (908)
000-0000).
Section 12. PARTIES. This Agreement and the Pricing Agreement shall each
inure to the benefit of and be binding upon the Underwriters, TMSI, the Seller
and their respective successors. Nothing expressed or mentioned in this
Agreement or the Pricing Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters, TMSI, the Seller and
their respective successors and the controlling persons and officers and
directors referred to in Section 6 and 7 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or with
respect to this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and the Pricing Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Underwriters, TMSI, the Seller and their respective successors,
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Notes or Certificates from any Underwriter shall be
deemed to be a successor by reason merely of such purchase. TMSI and the Seller
shall be jointly and severally liable for all obligations incurred under this
Agreement and the Pricing Agreement.
Section 13. GOVERNING LAW AND TIME. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to principles of conflicts of laws, applicable
to agreements made and to be performed in said State. Unless otherwise set forth
herein, specified times of day refer to New York time.
Section 14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to TMSI and the Seller a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, the Seller and TMSI in accordance with its terms.
Very truly yours,
TMS AUTO HOLDINGS, INC.
By: ___________________
Name:
Title:
THE MONEY STORE INC.
By: ___________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXX XXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: XXXXX XXXXXX INC.
By: _______________________
Name:
Title:
SCHEDULE I
PRINCIPAL INITIAL
UNDERWRITER CLASS AMOUNT OF NOTES
Xxxxx Xxxxxx Inc. A-1 $105,000,000
Xxxxxxx Lynch, Pierce, A-1 $ 55,000,000
Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxxx Inc. A-2 $ 40,500,000
Xxxxxxx Lynch, Pierce, A-2 $ 20,000,000
Xxxxxx & Xxxxx Incorporated
PRINCIPAL INITIAL
UNDERWRITER CLASS AMOUNT OF
CERTIFICATES
Xxxxx Xxxxxx Inc. $ 4,500,000
Xxxxxxx Lynch, Pierce, $ 0
Xxxxxx & Xxxxx Incorporated
Exhibit A
