Exhibit 1.1
$300,000,000
THE MONEY STORE INC.
$175,000,000 8.05% SENIOR NOTES DUE 2002
$125,000,000 8.375% SENIOR NOTES DUE 2004
UNDERWRITING AGREEMENT
New York, New York
April 10, 1997
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇ Brothers Inc.
Prudential Securities Incorporated
Salomon Brothers Inc
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The Money Store Inc., a New Jersey corporation (the "Company"),
proposes to issue and sell to you, the underwriters (the "Underwriters"), the
principal amount of its securities identified in SCHEDULE IA and SCHEDULE IB
hereto (the "Notes"), to be issued under the Indenture to be dated as of April
15, 1997 among the Company, The Chase Manhattan Bank, as trustee (the
"Trustee"), and the subsidiary guarantors named therein (the "Guarantors"), as
amended and supplemented by the First Supplemental Indenture to be dated as of
April 15, 1997 among the Company, the Trustee and the Guarantors and the Second
Supplemental Indenture to be dated as of April 15, 1997 among the Company the
Trustee and the Guarantors (collectively, the "Indenture"). The Notes are more
fully described in the Final Prospectus referred to below.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, each Underwriter, that:
a. The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (the file number of which is set
forth in SCHEDULE I hereto), which has become effective, for the
registration under the Act of the Notes. Such registration statement,
as amended at the date of this Agreement, meets the requirements set
forth in Rule 415 under the Act and complies in all other material
respects with said Rule. The Company will file with the Commission
pursuant to Rule 424 and/or Rule 434 under the Act a supplement to the
form of prospectus included in such registration statement relating to
the Notes and the plan of distribution thereof and has previously
advised you of all further information (financial and other) with
respect to the Company to be set forth therein. Such registration
statement, including all financial schedules and exhibits thereto, as
amended at the time when it is declared effective, is hereinafter
called the "Registration Statement"; such prospectus in the form in
which it appears in the Registration Statement is hereinafter called
the "Basic Prospectus"; and such supplemented form of prospectus, in
the form in which it shall be filed with the Commission pursuant to
Rule 424 and/or Rule 434 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus which has heretofore been
filed pursuant to Rule 424(b) hereinafter is called the "Supplemented
Prospectus." Any reference herein to the Registration Statement, the
Basic Prospectus, any Supplemented Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein that were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any Supplemented
Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, and the
Supplemented Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of such
Registration Statement, Basic Prospectus, any Supplemented Prospectus
or the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
b. When any Supplemented Prospectus is filed pursuant to Rule
424 or Rule 434 under the Act, when the Final Prospectus is first filed
pursuant to Rule 424 or Rule 434 under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when
any supplement to the Final Prospectus is filed with the Commission and
at the Closing Date (as hereinafter defined), (i) the Registration
Statement as amended as of any such time, the Supplemented Prospectus,
as amended or supplemented as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, and the
Indenture will comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the Exchange Act and the respective
rules thereunder, (ii) the Registration Statement, as amended as of any
such time, will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, (iii)
the Supplemented Prospectus, as amended or supplemented as of any such
time, will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, and (iv) the Final
Prospectus, as amended or supplemented as of any such time, will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the Company
makes no representations or warranties as to (A) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the Trust
Indenture Act of the Trustee or (B) the information contained in or
omitted from the Registration Statement, the Supplemented Prospectus,
or the Final Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter specifically
for use in connection with the preparation of the Registration
Statement, the Supplemented Prospectus and the Final Prospectus.
c. Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, except
as set forth in the Registration Statement and the Final Prospectus,
(i) there has been no material adverse change or any development
involving a prospective material adverse change in the business,
properties, assets, operations, condition (financial or other), net
worth or results of operations of the Company and its subsidiaries
taken as a whole, whether or not arising from transactions in the
ordinary course of business, (ii) since the date of the latest balance
sheet presented in the Registration Statement and the Final Prospectus,
neither the Company nor any of its subsidiaries were incurred or
undertaken any liabilities or obligations, direct or contingent, which
are material to the Company and its subsidiaries taken as a whole,
except for liabilities or obligations which are reflected or
specifically described in the Registration Statement and the Final
Prospectus or incurred in the ordinary course of business, and (iii)
neither the Company nor any of its subsidiaries have entered into any
transactions, other than those in the ordinary course of business or
disclosed in the Registration Statement and Final Prospectus, which are
material to the Company and its subsidiaries taken as a whole.
d. Neither the Company nor any of its subsidiaries nor, to the
Company's knowledge, any other party, is now, or is reasonably expected
by the Company or any of its subsidiaries to be, in violation or breach
of, or default (disregarding any grace or notice provision) with
respect to any material provision of any material contract, agreement,
instrument, lease or, license to which the Company or any of its
subsidiaries is a party, which violation, breach or default or
violations, breaches or defaults, singly or in the aggregate has, or
can reasonably be expected in the future to have, a material adverse
effect on the business, properties, assets, operations, condition
(financial or other), net worth or results of operations of the Company
and its subsidiaries taken as a whole; and each such material contract,
agreement, instrument, lease and is in full force and is the legal,
valid and binding obligation of the Company or its subsidiaries, as the
case may be, and is enforceable as to the Company or its subsidiaries,
as the case may be, in accordance with its terms subject, as to
enforceability, to applicable bankruptcy, reorganization, moratorium or
other similar laws of general application affecting the rights of
creditors generally, except where such failure to be in full force or
to be a legal, valid and binding obligation or to be enforceable, as
the case may be, has not had, or would not reasonably be expected in
the future to have, a material adverse effect on the business,
properties, assets, operations, condition (financial or other), net
worth or results of operations of the Company and its subsidiaries
taken as a whole.
e. Except as described in the Final Prospectus, there is no
litigation or governmental proceeding to which the Company or any of
its subsidiaries is a party or to which any property of the Company or
any of its subsidiaries is subject or which is pending or, to the
knowledge of the Company, contemplated against the Company or any of
its subsidiaries which could reasonably be expected to have a material
adverse affect on the business, properties, assets, operations,
condition (financial or other), net worth or results of operations of
the Company and its subsidiaries taken as a whole or which is required
to be disclosed in the Registration Statement and the Final Prospectus.
f. The financial statements, including the notes thereto, and
supporting schedules included in the Registration Statement and the
Final Prospectus present fairly the financial position of the Company
and its subsidiaries as of the dates indicated and the results of its
operations for the periods specified; except as otherwise stated in the
Registration Statement, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
SCHEDULE I hereto, the respective principal amount of the Notes set forth
opposite such Underwriter's name in SCHEDULE II hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Notes shall
be made on the date and at the time specified in SCHEDULE I hereto, which date
and time may be postponed by agreement between the Underwriters and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Notes being herein called the "Closing Date"). Delivery of the Notes
shall be made to the Underwriters against payment by the Underwriters of the
purchase price thereof in the manner set forth in SCHEDULE I hereto.
Certificates for the Notes shall be in the form of one or more permanent global
certificates in definitive form deposited with the Paying Agent, Security
Registrar and Transfer Agent as custodian for The Depository Trust Company
("DTC") and registered in the name of Cede & Co., as nominee for DTC.
The Company agrees to have the Notes available for inspection by the
Underwriters in New York, New York, not later than 1:00 PM on the business day
prior to the Closing Date.
4. AGREEMENTS. The Company agrees with the several Underwriters that:
a. Prior to the termination of the offering of the Notes, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus
unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus to be filed with the Commission
pursuant to Rule 424 or Rule 434. The Company will advise the
Underwriters promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424 or Rule 434, (ii) when
any amendment to the Registration Statement relating to the Notes shall
have become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment of or supplement
to the Final Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
b. If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which, in the opinion of counsel to the Company, the Final Prospectus
as then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, or if, in the opinion of counsel to the Company,
it shall be necessary to amend or supplement the Final Prospectus to
comply with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance.
c. The Company, as soon as practicable, will make generally
available to its security holders and to the Underwriters a
consolidated earnings statement of the Company and its subsidiaries
that satisfies the provisions of Section 11(a) of the Act and Rule 158
thereunder.
d. The Company will furnish to the Underwriters and counsel
for the Underwriters, without charge, copies of the Registration
Statement (including exhibits thereto) and each amendment thereto which
shall become effective on or prior to the Closing Date and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Supplemented Prospectus and the Final
Prospectus and any amendments thereof and supplements thereto as the
Underwriters may reasonably request. The Company will pay the expenses
of printing all documents relating to the offering.
e. The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as the
Underwriters may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of
the Notes and will arrange for the determination of the legality of
the Notes for purchase by institutional investors; provided, however,
that the Company shall not be required to qualify to do business in
any jurisdiction where it is not now so qualified or to take any
action which would subject it to general or unlimited service of
process of any jurisdiction where it is not now so subject.
f. The Company will not voluntarily claim, and will resist
actively any attempts to claim, the benefit of any usury laws against
the holders of the Notes.
g. Neither the Company nor any of its subsidiaries will take,
directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Notes. Until the business day following the
Closing Date, the Company will not, without the consent of the
Underwriters, offer or sell, or announce the offering of, any
securities (other than the Notes) covered by the Registration
Statement or by any other registration statement filed under the Act.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Notes shall be subject to the accuracy in
all material respects of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date (including the filing of any document incorporated by reference
therein) and as of the Closing Date, to the accuracy in all material respects of
the opinions, certificates or letters furnished to you or to ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A., counsel for the Underwriters,
pursuant to the provisions hereof, to the performance by the Company in all
material respects of its obligations hereunder and to the following additional
conditions:
a. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened; and the Final Prospectus shall have been filed with the
Commission within the time period prescribed by the Commission.
b. The Company shall have furnished to the Underwriters the
opinion, dated the Closing Date, of ▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Vice
President and Corporate Counsel for the Company, in substantially the
form attached as EXHIBIT A hereto.
c. The Company shall have furnished to the Underwriters the
opinion, dated the Closing Date, of Stroock & Stroock & ▇▇▇▇▇ LLP,
counsel for the Company, in substantially the form attached as EXHIBIT
B hereto.
d. All proceedings taken in connection with the sale of the
Notes as herein contemplated shall be reasonably satisfactory in form
and substance to you and to ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A., counsel for the Underwriters, and the
Underwriters shall have received from counsel for the Underwriters
such opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Notes, the Indenture, the Registration
Statement, the Final Prospectus and other related matters as the
Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
e. The Company shall have furnished to the Underwriters a
certificate of the Company, signed by the Chief Executive Officer or a
Senior or Executive Vice President and the principal financial or
accounting officer or Treasurer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus
and this Agreement and that to the best of their knowledge:
i. the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied in
all material respects with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at
or prior to the Closing Date;
ii. no stop order suspending the effectiveness of the
Registration Statement, as amended, and no order directed at
any document incorporated by reference in the Registration
Statement or the Final Prospectus or any amendment or
supplement thereto has been issued, and no proceedings for
that purpose have been instituted or threatened or, to the
best of the Company's knowledge, are contemplated by the
Commission; and
iii. since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus, there has been no material adverse change, or any
development involving a prospective material adverse change,
in the condition (financial or otherwise), management, net
worth, or results of operations of the Company and its
subsidiaries, considered as a whole, whether or not arising
from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus.
f. KPMG Peat Marwick LLP shall have furnished to the Underwriters a
letter or letters (which may refer to letters previously delivered to one or
more of the Underwriters), dated the date hereof, in form and substance
satisfactory to the Underwriters, confirming that the response, if any, to Item
10 of the Registration Statement is correct insofar as it relates to them and
stating in effect that:
i. They are independent accountants within the meaning of the
Act and the Exchange Act and the respective applicable published rules
and regulations thereunder.
ii. In their opinion, the consolidated financial statements
of the Company and its subsidiaries audited by them and included or
incorporated by reference in the Registration Statement and Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the Act and the regulations thereunder with
respect to registration statements on Form S-3 and the Exchange Act
and the regulations thereunder.
iii. On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting of:
(1) Reading the minutes of the meetings of
the shareholders, the board of directors, executive
committee and audit committee of the Company and the
boards of directors and executive committees of its
subsidiaries as set forth in the minute books through
a specified date not more than five business days
prior to the date of delivery of such letter; and
(2) Making inquiries of certain officials of
the Company who have responsibility for financial and
accounting matters regarding the specific items for
which representations are requested below; nothing
has come to their attention as a result of the
foregoing procedures that caused them to believe
that:
(a) (i) at the date of the latest available
interim financial data and at the specified date not
more than five business days prior to the date of the
delivery of such letter, there was any change in the
capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases
in shareholders' equity of the Company and the
subsidiaries on a consolidated basis as compared with
the amounts shown in the latest balance sheet
included or incorporated by reference in the
Registration Statement and the Prospectus or (ii) for
the period from the date of the latest available
financial data to a specified date not more than five
business days prior to the delivery of such letter,
there was any change in the capital stock or the
long-term debt (other than scheduled repayments of
such debt) or any decreases in shareholders' equity
of the Company and the subsidiaries on a consolidated
basis, except in all instances for changes or
decreases which the Registration Statement and
Prospectus discloses have occurred or may occur, or
KPMG Peat Marwick LLP shall state any specific
changes or decreases.
iv. The letter shall also state that KPMG Peat Marwick LLP
has carried out certain other specified procedures, not constituting
an audit, with respect to certain amounts, percentages and financial
information which are included or incorporated by reference in the
Registration Statement and Prospectus and which are specified by the
Underwriters and agreed to by KPMG Peat Marwick LLP, and has found
such amounts, percentages and financial information to be in agreement
with the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter. In addition,
on the Closing Date, KPMG Peat Marwick LLP shall have furnished to the
Underwriters a letter or letters, dated the date of this Agreement, in
form and substance satisfactory to the Underwriters, to the effect set
forth in this paragraph (f) and in SCHEDULE I hereto.
g. Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, there
shall not have been (i) any change or decrease specified in the letter
or letters referred to in paragraph (f) of this Section 5 or (ii) any
change, in or affecting the earnings, business or properties of the
Company and its subsidiaries the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the judgment of the
Underwriters, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery of the Notes
as contemplated by the Registration Statement and the Final
Prospectus.
h. Prior to the Closing Date, the Company shall have
furnished to the Underwriters such further information, certificates
and documents as the Underwriters may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Underwriters. Notice of such cancellation
shall be given to the Company in writing or by telephone or facsimile
transmission confirmed in writing.
6. PAYMENT OF EXPENSES. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the copying of this Agreement and the Indenture,
(iii) the preparation, issuance and delivery of the certificates for the Notes
to the Underwriters, including capital duties, stamp duties and stock transfer
taxes, if any, payable upon issuance of any of the Notes, the sale of the Notes
to the Underwriters and the fees and expenses of the transfer agent for the
Notes, (iv) the fees and disbursements of the Company's counsel and accountants,
(v) the qualification of the Notes under state securities laws in accordance
with the provisions of Section 4(e), including filing fees and the reasonable
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
and delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of the preliminary prospectuses,
and of the Prospectuses and any amendments or supplements thereto, (vii) the
printing and delivery to the Underwriters of copies of the Blue Sky Survey, and
(viii) the fee of the National Association of Securities Dealers, Inc., if any.
If the sale of the Notes provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Notes.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the
Notes as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Supplemented Prospectus or the Final Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that:
(i) the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter specifically for use in connection with the
preparation thereof, and
(ii) such indemnity with respect to the Basic
Prospectus or any Supplemented Prospectus shall not inure to
the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Notes which are the
subject thereof if such Underwriters did not send or deliver
to such person a copy of the Final Prospectus (or the Final
Prospectus as amended or supplemented) excluding documents
incorporated therein by reference at or prior to the
confirmation of the sale of such Notes to such person in any
case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the
Basic Prospectus or any Supplemented Prospectus was corrected
in the Final Prospectus (or the Final Prospectus as amended or
supplemented). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating
to such Underwriter furnished to the Company by or on behalf of such
Underwriter specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the statements set forth in the
last paragraph of the cover page, or the first paragraph of the inside
front cover page and the third paragraph, fifth paragraph (to the
extent statements made therein relate to the market making activities
of the Underwriters) and sixth paragraph under the heading
"UNDERWRITING" in the Supplemented Prospectus and the Final Prospectus
constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in the documents referred to
in the foregoing indemnity, and you, as the Underwriters, confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under
paragraphs (a) or (b) of this Section 7 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 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 7. 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 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 shall have reasonably
concluded that there may be legal defenses available to it and/or
other indemnified parties which 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 under this Section 7 for any legal or
other expenses subsequently incurred by such indemnified party 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 (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one
separate counsel, approved by the Underwriters in the case of
subparagraph (a), representing the indemnified parties under
subparagraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed
counsel 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).
No indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in the
preceding paragraphs of this Section 7 is due in accordance with its
terms but is for any reason held by a court to be unavailable from
either indemnifying party on the grounds of policy or otherwise or is
insufficient, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the
Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of such
discount and the purchase price of the Notes specified in SCHEDULE IA
or SCHEDULE IB hereto and the Company is responsible for the balance;
provided, however, that
(i) in no case shall any Underwriter (except as may
be provided in any agreement among underwriters relating to
the offering of the Notes) be responsible for any amount in
excess of the underwriting discount applicable to the Notes
purchased by such Underwriter hereunder, and
(ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls an Underwriter within the
meaning of the Act shall have the same rights to contribution
as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same
rights to contribution as the Company.
8. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the Notes agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Notes set forth
opposite their names in SCHEDULE II hereto bear to the aggregate amount of Notes
set forth opposite the names of all the remaining Underwriters) the Notes which
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of Notes which
the defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Notes set forth in SCHEDULE II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Notes, and if such non-defaulting
Underwriters do not purchase all the Notes, this Agreement will terminate
without liability to any non-defaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 8, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
non-defaulting Underwriters shall determine in order that the required changes
in the Registration Statement and the Final Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company and
any non-defaulting Underwriter for damages occasioned by its default hereunder.
9. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Company prior to
delivery of and payment for the Notes, if prior to such time (i) trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market shall have been suspended or limited or minimum prices shall have been
established on either the exchange or market system, (ii) a banking moratorium
shall have been declared either by New York or Federal authorities or (iii)
there shall have occurred any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment of the
Underwriters, impracticable to market the Notes.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Notes. The provisions of
Section 6 and 7 hereof and this Section 10 shall survive the termination or
cancellation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
SCHEDULE I hereto, with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& ▇▇▇▇▇, P.A., One Riverfront Plaza, Newark, New Jersey 07102-5400, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.; or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ to the attention of the Secretary, with a copy to Stroock & Stroock &
▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Esq.
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
[THIS AGREEMENT CONTINUES ON THE NEXT PAGE.]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
THE MONEY STORE INC.
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
SCHEDULE I hereto
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇ BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
SALOMON BROTHERS INC
By: BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
Senior Managing Director
SCHEDULE IA
Underwriting Agreement dated April 10, 1997
Registration Statement No. 333-24807
Underwriters: Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇ Brothers Inc.
Prudential Securities Incorporated
Salomon Brothers Inc
Address of Underwriters: c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Title, Purchase Price and Description of Notes:
Title: 8.05% Senior Notes due 2002
Principal amount: $175,000,000
Date of Maturity: April 15, 2002
Interest Payment Dates: April 15 and October 15 of each year,
commencing October 15, 1997
Purchase price: 99.40%; payable in federal (same day) funds, by wire
transfer to an account previously designated to the Underwriters by the
Company.
Sinking fund provisions: There will be no sinking fund payments.
Redemption provisions: The Notes are not redeemable prior to maturity.
Other provisions:
Closing Date, Time and Location: April 15, 1997, 10:00 a.m., New York City
time, Office of Stroock & Stroock & ▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇.
Listing: Not applicable.
Additional items to be covered by the letter from KPMG Peat Marwick LLP
delivered pursuant to Section 5(f):
SCHEDULE IB
Underwriting Agreement dated April 10, 1997
Registration Statement No. 333-24807
Underwriters: Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇ Brothers Inc.
Prudential Securities Incorporated
Salomon Brothers Inc
Address of Underwriters: c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Title, Purchase Price and Description of Notes:
Title: 8.375% Senior Notes due 2004
Principal amount: $125,000,000
Date of Maturity: April 15, 2004
Interest Payment Dates: April 15 and October 15 of each year,
commencing October 15, 1997
Purchase price: 99.375%; payable in federal (same day) funds, by wire
transfer to an account previously designated to the Underwriters by the
Company.
Sinking fund provisions: There will be no sinking fund payments.
Redemption provisions: The Notes are not redeemable prior to maturity.
Other provisions:
Closing Date, Time and Location: April 15, 1997, 10:00 a.m., New York City
time, Office of Stroock & Stroock & ▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇.
Listing: Not applicable.
Additional items to be covered by the letter from KPMG Peat Marwick LLP
delivered pursuant to Section 5(f):
SCHEDULE II
Principal Amount of Five Year Notes Principal Amount of Seven Year Notes
UNDERWRITERS to be Purchased to be Purchased
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $43,750,000 $31,250,000
▇▇▇▇▇▇ Brothers Inc. 43,750,000 31,250,000
Prudential Securities Incorporated 43,750,000 31,250,000
Salomon Brothers Inc 43,750,000 31,250,000
TOTAL $175,000,000 $125,000,000
============ ============
EXHIBIT A
FORM OF OPINION OF ▇▇▇▇ ▇. ▇▇▇▇▇, ESQ. PURSUANT TO SECTION 5(B) OF THE
UNDERWRITING AGREEMENT
1. The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of New Jersey.
2. Each of the subsidiaries of the Company listed on Exhibit __
hereto (the "Material Subsidiaries") has been duly incorporated and is
validly existing and in good standing under the laws of its
jurisdiction of incorporation.
3. The Company and each of the Material Subsidiaries is duly
qualified and in good standing as a foreign corporation in each state
listed on Exhibit ___ hereto (except as otherwise indicated on Exhibit
___ hereto) and (ii) in each other jurisdiction where each such entity
owns or leases real property or where the conduct of its business
requires such qualification, except where the failure to be so
qualified or in good standing will not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
4. The Company has all requisite corporate power to execute and
deliver each of this Agreement and the Indenture and to carry out all
the terms and provisions hereof and thereof to be carried out by it,
and to carry on its business and own or lease its real property as
described in the Registration Statement or Prospectus.
5. Each Material Subsidiary has all requisite corporate power to
execute and deliver the Senior Guaranty Agreement and to carry out all
the terms and provisions thereof, and to carry on its business and own
or lease its real property as described in the Registration Statement
and the Prospectus.
6. The Company has authorized capital stock as set forth in the
Final Prospectus under the caption "Capitalization"; all of the issued
shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable and were not
issued in violation of or subject to any preemptive or other rights to
subscribe for or purchase securities.
7. The issued shares of capital stock of each Material Subsidiary
have been duly authorized and validly issued, are fully paid and
nonassessable, and are owned beneficially directly by the Company free
and clear of any perfected security interests or any other security
interests, liens, encumbrances or claims.
8. The execution and delivery of the Underwriting Agreement, the
Indenture and the Notes and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary corporate action of the Company and each of the Underwriting
Agreement and the Indenture has been duly executed and delivered by
the Company.
9. The execution and delivery of the Senior Guaranty Agreement
has been duly authorized by all necessary corporate action of each of
the Material Subsidiaries and the Senior Guaranty Agreement has been
duly executed and delivered by each of the Material Subsidiaries.
10. No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of their
respective properties are bound or may be affected in any material
adverse respect with regard to property, business or operations of the
Company or its subsidiaries.
11. There is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or any of
their respective properties of a character required to be described in
the Registration Statement or the Final Prospectus; and there is no
contract or other document of a character required to be described in
the Registration Statement or the Final Prospectus, or to be filed as
an exhibit to the Registration Statement, which is not described or
filed as required.
12. The execution, delivery, and performance of the Underwriting
Agreement and the Indenture and the consummation of the transactions
contemplated hereby and thereby including the sale of and issuance of
the Notes by the Company and the execution, delivery, and performance
of Senior Guaranty Agreement by the Material Subsidiaries do not and
will not (A) conflict with or result in a breach of any of the terms
and provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default) under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any material agreement or instrument to
which the Company or any of its subsidiaries is a party or to which
their respective properties or assets may be bound or (B) violate or
conflict with any provision of the certificate of incorporation or
by-laws of the Company or any of its subsidiaries, or, any statute,
rule or regulation of any public, governmental or regulatory agency or
body having jurisdiction over the Company, its subsidiaries or any of
their respective properties or assets. No consent, approval,
authorization, order, registration, filing, qualification, license or
permit of or with any court or any public, governmental, or regulatory
agency or body having jurisdiction over the Company, its subsidiaries
or any of their respective properties or assets is required for the
execution, delivery and performance of the Underwriting Agreement and
the Indenture or the consummation of the transactions contemplated
hereby or thereby or the Senior Guaranty Agreement;
13. The description of the Notes which is included in the Final
Prospectus, insofar as such statements purport to summarize certain
provisions of the such Notes, provides a fair summary of such
provisions; the Indenture complies as to form in all material respects
with the requirements of the Trust Indenture Act, and the rules and
regulations of the Commission thereunder; and upon effectiveness of
the Registration Statement, will be duly qualified under the Trust
Indenture Act.
14. Insofar as statements in the Registration Statement,
Supplemented Prospectus and the Final Prospectus purport to summarize
the provisions of laws, rules, regulations, contracts, agreements,
instruments, or licenses, such statements constitute accurate
summaries in all material respects.
15. None of the Company or any of the Material Subsidiaries is in
violation or breach of, or in default with respect to, any term of its
respective articles of incorporation or bylaws. Neither the Company
nor any of the Material Subsidiaries is in violation of any federal or
state law or regulation relating to their respective lending
activities, including, without limitation, rules and regulations of
the United States Small Business Administration, rules and regulations
of the Guaranteed Student Loan Program and applicable banking laws,
rules and regulations, except for any such violation of law or
regulation which would not, individually or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as
a whole.
16. The Company and each of its subsidiaries possesses all
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses as described in the Final Prospectus, and
neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
17. The statements set forth under the subheadings "HOME EQUITY
LOANS," "COMMERCIAL LOANS," "STUDENT LOANS," "AUTO LOANS," "LOAN
FUNDING AND BORROWING ARRANGEMENTS," "REGULATION" and "ENVIRONMENTAL
POLICIES" under the heading "ITEM 1. BUSINESS" and under the heading
"ITEM 3. LEGAL PROCEEDINGS" in the Company's Annual Report on Form
10-K for the year ended December 31, 1996, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, provide a fair summary of such legal matters,
documents and proceedings.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which he is admitted upon an opinion or opinions of other
counsel of good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters; (B) as to matters involving the Material
Subsidiaries, to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or opinions of other
counsel of good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters; and (C) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company and the
Material Subsidiaries and public officials.
EXHIBIT B
Form of opinion of Stroock & ▇▇▇▇▇▇▇ & ▇▇▇▇▇
pursuant to Section 5(c) of the Underwriting Agreement
1. Each of the subsidiaries of the Company listed on Exhibit ___
hereto (the "Material Subsidiaries") that is incorporated under the
laws of the State of Delaware (the "Delaware Material Subsidiaries")
has been duly incorporated and is validly existing and in good
standing under the laws of the State of Delaware.
2. The issued shares of capital stock of each Delaware Material
Subsidiary have been duly authorized and validly issued, are fully
paid and nonassessable and are owned, directly or indirectly,
beneficially by the Company free and clear of any perfected security
interests or any other security interests, liens, encumbrances or
claims.
3. The Company has authorized capital stock as set forth in the
Final Prospectus under the caption "Capitalization"; all of the issued
shares of capital stock of the Company have been issued in compliance
with all applicable federal securities laws and (ii) were not issued
in violation of or subject to any preemptive or other rights to
subscribe for or purchase securities (other than statutory preemptive
rights as to which we express no opinion).
4. Each Delaware Material Subsidiary has all requisite corporate
power to execute and deliver the Senior Guaranty Agreement and to
carry out all the terms and provisions thereof to be carried out by
it, and to carry on its business and own or lease its real property as
described in the Registration Statement and the Final Prospectus.
5. No legal or governmental proceedings are pending to which the
Company or any of the Material Subsidiaries is a party or to which the
property of the Company or any of the Material Subsidiaries is subject
that are required to be described in the Registration Statement or the
Final Prospectus ("Proceedings") and are not described therein; no
Proceedings have been threatened against the Company or any of the
Material Subsidiaries or with respect to any of their respective
properties; and no contract or other document is required to be
described in the Registration Statement or the Final Prospectus or to
be filed as an exhibit to the Registration Statement that is not
described therein or filed as required.
6. The execution and delivery of the Senior Guaranty Agreement
has been duly authorized by all necessary corporate action of each of
the Delaware Material Subsidiaries and the Senior Guaranty Agreement
has been duly executed and delivered by each of the Delaware Material
Subsidiaries.
7. Assuming its due authorization, execution and delivery, the
Indenture has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws affecting the
rights of creditors now or hereafter in effect, and to equitable
principles that may limit the right to specific enforcement of
remedies); and assuming the due authorization of the Notes and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant
to the Underwriting Agreement, in the case of the Notes, or by the
purchasers thereof pursuant to Delayed Delivery Contracts, in the case
of any Contract Notes, the Notes will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights of creditors now
or hereafter in effect, and to equitable principles that may limit the
right to specific enforcement of remedies).
8. The execution, delivery, and performance of the Underwriting
Agreement and the Indenture and the consummation of the transactions
contemplated hereby and thereby including the sale of and issuance of
the Notes by the Company and the execution, delivery, and performance
of Senior Guaranty Agreement by the Material Subsidiaries do not and
will not (A) conflict with or result in a breach of any of the terms
and provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default) under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any agreement or instrument filed as an
exhibit to, or incorporated by reference in, the Registration
Statement or (B) violate or conflict with any provision of the
certificate of incorporation or by-laws of the Company or any of its
subsidiaries, or any statute, rule or regulation of any public,
governmental or regulatory agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties or
assets. No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any
public, governmental, or regulatory agency or body having jurisdiction
over the Company, the Material Subsidiaries or any of their respective
properties or assets is required for the execution, delivery and
performance of the Underwriting Agreement and the Indenture or the
consummation of the transactions contemplated hereby or thereby or the
Senior Guaranty Agreement, except for (1) such as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Notes by the Underwriters (as to
which such counsel need express no opinion) and (2) such as have been
made or obtained under the Act, the Exchange Act and the Trust
Indenture Act. No consent of any party to any contract or agreement
filed as an exhibit to, or incorporated by reference in, the
Registration Statement, or under the provisions of any outstanding
series of the Company's preferred stock, is required for the
execution, delivery, or performance of the Underwriting Agreement or
the Indenture.
9. No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of their
respective properties are bound or may be affected in any material
adverse respect with regard to property, business or operations of the
Company or its subsidiaries.
10. There is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries, of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and there in no
franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit, which is not described or filed as required;
11. The Registration Statement is effective under the Act; any
filing of the Final Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); no
stop order suspending the effectiveness of the Registration Statement
has been issued and no order directed at any document incorporated by
reference in the Registration Statement or the Final Prospectus has
been issued, and no proceedings for that purpose have been instituted
or threatened; the Registration Statement, the Final Prospectus and
each amendment thereof or supplement thereto (other than the financial
statements and other financial and statistical information contained
therein or incorporated by reference therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act and the Exchange Act and
the respective Rules and Regulations of the Commission thereunder.
12. The statements set forth under the subheadings "HOME EQUITY
LOANS," "COMMERCIAL LOANS," "STUDENT LOANS," "AUTO LOANS," "LOAN
FUNDING AND BORROWING ARRANGEMENTS," "REGULATION" and "ENVIRONMENTAL
POLICIES" under the heading "ITEM 1. BUSINESS" and under the heading
"ITEM 3. LEGAL PROCEEDINGS" in the Company's Annual Report on Form
10-K for the year ended December 31, 1996, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, provide a fair summary of such legal matters,
documents and proceedings.
13. The description of the Notes which is included in the
Prospectus, insofar as such statements purport to summarize certain
provisions of the such Notes, provides a fair summary of such
provisions; the Indenture complies as to form in all material respects
with the requirements of the Trust Indenture Act, and the rules and
regulations of the Commission thereunder; and upon effectiveness of
the Registration Statement, will be duly qualified under the Trust
Indenture Act.
14. Insofar as statements in the Registration Statement,
Supplemented Prospectus and the Final Prospectus purport to summarize
the provisions of laws, rules, regulations, contracts, agreements,
instruments, or licenses, such statements constitute accurate
summaries in all material respects.
15. The Company and each of its subsidiaries are, and upon sale
of the Notes will be, exempt from registration under the Investment
Company Act of 1940.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the independent certified
public accountants of the Company and yourselves at which the contents of the
Registration Statement, the Final Prospectus and any amendment thereof or
supplement thereto and related matters were discussed and, although such counsel
has not undertaken to investigate or verify independently, and does not assume
any responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Final Prospectus or any amendment
thereof or supplement thereto, on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of officers and other
representatives of the Company) such counsel has no reason to believe that
either the Registration Statement at the time it became effective (or any
amendment thereof made prior to the Closing Date, as of the date of such
amendment) contained an untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final Prospectus as of the date
thereof (or any amendments thereof or supplement thereto made prior to the
Closing Date, as of the date of such amendment or such supplement) and as of the
Closing Date contained an untrue statement of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no belief or opinion with respect to the
financial statements and related notes, financial statement schedules, other
financial and statistical data and exhibits included therein or omitted
therefrom).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which he is admitted upon an opinion or opinions of other
counsel of good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters; (B) as to matters involving the Material
Subsidiaries, to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or opinions of other
counsel of good standing believed to be reliable and who are satisfactory to
counsel for the Underwriters; and (C) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company and the
Material Subsidiaries and public officials.
SCHEDULE A
GUARANTORS
As set forth in the Base Prospectus under "DESCRIPTION OF SECURITIES
-- SUBSIDIARY GUARANTEES."
SCHEDULE B
MATERIAL GUARANTORS
1. TMS MORTGAGE INC.
2. THE MONEY STORE INVESTMENT CORPORATION
3. THE MONEY STORE AUTO FINANCE INC.
SCHEDULE C
MATERIAL SUBSIDIARIES
1. TMS MORTGAGE INC.
2. THE MONEY STORE INVESTMENT CORPORATION
3. THE MONEY STORE AUTO FINANCE INC.
4. TRANS-WORLD INSURANCE COMPANY
5. TMS HOME HOLDINGS, INC.
6. TMS AUTO HOLDINGS, INC.
7. TMS STUDENT HOLDINGS, INC.
8. TMS SPECIAL HOLDINGS, INC.
9. TMS SBA HOLDINGS, INC.
