THE MONEY STORE INC.
TMS AUTO HOLDINGS, INC.
The Money Store Auto Trust 1996-2
$59,600,000 Class A-1 5.5125% Asset Backed Notes
$121,400,000 Class A-2 Floating Rate Asset Backed Notes
$67,000,000 Class A-3 6.25% Asset Backed Notes
$7,000,000 6.435% Asset-Backed Certificates
UNDERWRITING AGREEMENT
December 17, 1996
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 1996-2 (the "Trust") to issue and sell $59,600,000 principal
amount of its Class A-1 5.5125% Asset Backed Notes (the "Class A-1 Notes"),
$121,400,000 principal amount of its Class A-2 Floating Rate Asset Backed Notes
(the "Class A-2 Notes"), $67,000,000 principal amount of its Class A-3 6.25%
Asset Backed Notes (the "Class A-3 Notes" and, together with the Class A-1 Notes
and the Class A-2 Notes, the "Notes") and $7,000,000 principal amount of its
6.435% 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 November 30, 1996
(the "Purchase Agreement") between the Seller and TMS Auto Finance, Inc., all
monies received under the Initial Receivables after, with respect to each
Initial Receivable, the later of (x) November 30, 1996 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 financial guaranty insurance policy issued by Financial
Security Assurance Inc. (the "Insurer") to the Indenture Trustee (as defined
below) for the benefit of the Noteholders (the "Note Policy"), a financial
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 November 30, 1996 (the "Sale and Servicing
Agreement") among the Trust, the Seller, TMSI and TMS Auto Finance Inc., as
servicer (the "Servicer"). Pursuant to the Sale and Servicing Agreement, the
Seller will sell the Receivables to the Trust and the Servicer will service the
Receivables on behalf of the Trust. In addition, pursuant to the Sale and
Servicing Agreement, the Servicer will agree to perform certain administrative
tasks imposed on the Trust under the Indenture. The Notes will be issued
pursuant to the Indenture to be dated as of November 30, 1996 (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 November 30,
1996, between the Seller and Bankers Trust (Delaware), as owner trustee (the
"Owner Trustee"). The Policies will be issued pursuant to the Insurance and
Indemnity Agreement dated as of November 30, 1996 by and among the Insurer,
TMSI, the Seller and the Servicer. In connection with the transactions
contemplated hereby, the Representative, the Insurer, TMSI and the Seller will
enter into an Indemnification Agreement dated as of December 27, 1996 (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. 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 and Indemnity Agreement (this Agreement,
the Pricing Agreement, the Sale and Servicing Agreement, the Trust
Agreement, the Purchase Agreement, the Indemnification Agreement and
the Insurance and Indemnity Agreement being herein referred to,
collectively, as the "Basic Documents") to which it is a party.
(iv) Each of TMSI, the Seller and the Servicer has been duly
organized and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation with all requisite
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under the Basic Documents to which it is a
party; and each is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on, (A)
the ability of any of TMSI, the Seller or the Servicer to perform its
obligations under the Basic Documents to which it is a party, or (B)
the business, properties, financial position, operations or results of
operations of TMSI, the Seller or the Servicer.
(v) Any person who signed this Agreement on behalf of TMSI or the
Seller was, as of the time of such signing and delivery, and is now
duly elected or appointed, qualified and acting, and the Agreement, as
so executed, is duly and validly authorized, executed, and constitutes
the valid, legal and binding agreement of each of TMSI and the Seller,
enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights in general and by
general principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(vi) Each Basic Document to which it is a party has been duly and
validly authorized by TMSI, the Seller and the Servicer and, when
executed and delivered by TMSI, the Seller and the Servicer, as the
case may be, and duly and validly authorized, executed and delivered
by the other parties thereto, will constitute, the valid and binding
agreement of TMSI, the Seller and the Servicer, as the case may be,
enforceable in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights in general
and by general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law; and
such Basic Documents and the Policies conform in all material respects
to the statements relating thereto contained in the Prospectus.
(vii) The Notes, when duly and validly executed by the Indenture
Trustee, authenticated and delivered in accordance with the Indenture,
and delivered and paid for pursuant hereto will be validly issued and
outstanding and entitled to the benefits of the Indenture. The
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, 0 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place as shall be agreed upon by the Representative, TMSI and the
Seller, at 10:00 A.M., New York City time, on December 27, 1996, 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, one or more Class A-3
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; (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, 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 and Indemnity 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 and
Indemnity 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
and Indemnity 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 and
Indemnity 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 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 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 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 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, 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 and
Indemnity 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 and Indemnity 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 and
Indemnity 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 and Indemnity 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 and
Indemnity 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
and Indemnity 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 and Indemnity 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 and Indemnity 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 and Indemnity 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 and Indemnity 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 general
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 and Indemnity Agreement have been duly authorized,
executed and delivered by the Insurer.
(C) The Policies, the Indemnification Agreement and the
Insurance and Indemnity 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 Indemnification 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 and
Indemnity 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 caption "The Insurer" in the Prospectus Supplement,
insofar as such statements constitute a description of the Insurer,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (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 and Indemnity Agreement, (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 $200,000,000. 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 $50,000,000, and (ii) in the Capitalized Interest
Account (as defined in the Prospectus Supplement), cash in an amount equal to a
sum satisfactory to the Insurer.
(h) The Policies shall have been delivered to the Trustee.
(i) At Closing Time, the Class A-1 Notes shall have been rated "A-1+"
by S&P and "P-1" by Xxxxx'x, and the Class A-2 Notes, the Class A-3 Notes 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 (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 (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 (x) 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), (y) the first paragraph
under "Risk Factors--Limited Liquidity" of the Prospectus, and (z) the
information contained under "Underwriting" of the Prospectus Supplement.
(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"); 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. 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 11. 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 12. 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 13. Counterparts. This Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to TMSI and the Seller a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters, the Seller and TMSI in accordance with its
terms.
Very truly yours,
TMS AUTO HOLDINGS, INC.
By: /s/ Xxxxxx Dear
----------------------
Name: Xxxxxx Dear
Title: Executive Vice President
THE MONEY STORE INC.
By: /s/ Xxxxxx Dear
----------------------
Name: Xxxxxx Dear
Title: Executive Vice President
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXX XXXXXX INC.
PRUDENTIAL SECURITIES INCORPORATED
By: XXXXX XXXXXX INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
SCHEDULE I
INITIAL
PRINCIPAL AMOUNT OF NOTES
UNDERWRITER CLASS
Xxxxx Xxxxxx Inc. A-1 $ 38,740,000
-----------
Prudential Securities A-1 $ 20,860,000
Incorporated -----------
Xxxxx Xxxxxx Inc. A-2 $ 78,910,000
-----------
Prudential Securities A-2 $ 42,490,000
Incorporated -----------
Xxxxx Xxxxxx Inc. A-3 $ 43,550,000
-----------
Prudential Securities A-3 $ 23,450,000
Incorporated -----------
PRINCIPAL INITIAL
UNDERWRITER AMOUNT OF CERTIFICATES
Xxxxx Xxxxxx Inc. $ 4,550,000
-----------
Prudential Securities $ 2,450,000
Incorporated -----------
Exhibit A
THE MONEY STORE INC.
TMS AUTO HOLDINGS, INC.
The Money Store Auto Trust 1996-2
$___________ Class A-1 Floating Rate Asset Backed Notes
$___________ Class A-2 Floating Rate Asset Backed Notes
$_________ Class A-3 _____% Asset Backed Notes
$________ ____% Asset-Backed Certificates
PRICING AGREEMENT
December ___, 1996
XXXXX XXXXXX INC.
as Representative ("Representative")
of the several Underwriters
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated December __,
1996 (the "Underwriting Agreement"), relating to $_____________ aggregate
principal amount Class A-1 ______% Floating Rate Asset Backed Notes (the "Class
A-1 Notes"), $__________ aggregate principal amount of Class A-2 Floating Rate
Asset Backed Notes (the "Class A-2 Notes"), $___________ aggregate principal
amount of Class A-3 ____% Asset Backed Notes (the "Class A-3 Notes" and, with
the Class A-1 Notes and the Class A-2 Notes, the "Notes"), and $___________
aggregate principal amount of ____% Asset Backed Certificates (the
"Certificates"), all issued by The Money Store Auto Trust 1996-2 (the "Trust".)
Pursuant to Section 2 of the Underwriting Agreement, The Money Store
Inc. ("TMSI") and TMS Auto Holdings, Inc. (the "Seller") agree with the
Representative on behalf of the Underwriters identified in Schedule I of the
Underwriting Agreement as follows:
1. The Class A-1 Interest Rate and the Class A-2 Interest Rate shall
be determined as set forth in the Indenture.
2. The Class A-3 Interest Rate shall be ____% per annum.
3. The Certificate Rate shall be _____% per annum.
4. The purchase price for the Class A-1 Notes shall be ____% of the
initial principal amount of the Class A-1 Notes.
5. The purchase price for the Class A-2 Notes shall be _____% of the
initial principal amount of the Class A-2 Notes.
6. The purchase price for the Class A-3 Notes shall be _________% of
the initial principal amount of the Class A-3 Notes.
7. The purchase price for the Certificates shall be ______% of the
initial principal amount of the Certificates.
8. The Notes and Certificates shall be offered from time to time in
negotiated transactions or otherwise, at prices determined at the time of sale.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Seller a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, TMSI and the Seller in accordance with its terms.
Very truly yours,
TMS AUTO HOLDINGS, INC.
By:
----------------------------
Name:
Title:
THE MONEY STORE INC.
By:
----------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXX XXXXXX INC.
PRUDENTIAL SECURITIES INCORPORATED
By: XXXXX XXXXXX INC.
By: ----------------------------
Name:
Title:
