EXHIBIT 1.1
$250,000,000
THE MONEY STORE INC.
$150,000,000 7.30% SUBORDINATED NOTES DUE 2002
$100,000,000 7.95% SUBORDINATED NOTES DUE 2007
UNDERWRITING AGREEMENT
New York, New York
December 3, 1997
Prudential Securities Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, Inc.
Salomon Brothers Inc
c/o Prudential Securities Incorporated
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-2014
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 December 1, 1997
among the Company and The Bank of New York, as trustee (the "Trustee"), as
amended and supplemented by the First Supplemental Indenture to be dated as of
December 1, 1997 among the Company and the Trustee and the Second Supplemental
Indenture to be dated as of as of December 1, 1997 among the Company and the
Trustee (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.
2
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
3
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
4
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
5
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
6
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
7
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 Closing Date, in form and
substance satisfactory to the Underwriters, to the effect set forth in
SCHEDULE IA and SCHEDULE IB 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.
The Underwriters agree to reimburse the Company for expenses in the amount of
$175,000.00 incurred by the Company in connection with the sale of the Notes.
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
8
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
9
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
10
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
11
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 IA AND SCHEDULE IB 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.]
12
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:
____________________________________
▇▇▇▇▇▇ Dear
Vice Chairman
Senior Executive Vice President
Secretary
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
SCHEDULE I hereto
PRUDENTIAL SECURITIES INCORPORATED
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES, INC.
SALOMON BROTHERS INC
By: PRUDENTIAL SECURITIES INCORPORATED
By:
__________________________________
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director
13
SCHEDULE IA
Underwriting Agreement dated December 3, 1997
Registration Statement No. 333-24807
Underwriters: Prudential Securities Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, Inc.
Salomon Brothers Inc
Address of Underwriters: c/o Prudential Securities Incorporated
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-2014
Title, Purchase Price and Description of Notes:
Title: 7.30% Subordinated Notes due 2002
Principal amount: $150,000,000
Date of Maturity: December 1, 2002
Interest Payment Dates: December 1 and June 1 of each year,
commencing June 1, 1998
Purchase price: 99.95% plus interest from December 1, 1997; 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: December 8, 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 December 3, 1997
Registration Statement No. 333-24807
Underwriters: Prudential Securities Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, Inc.
Salomon Brothers Inc
Address of Underwriters: c/o Prudential Securities Incorporated
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-2014
Title, Purchase Price and Description of Notes:
Title: 7.95% Subordinated Notes due 2007
Principal amount: $100,000,000
Date of Maturity: December 1, 2007
Interest Payment Dates: December 1 and June 1 of each year, commencing
June 1, 1998
Purchase price: 100% plus interest from December 1, 1997; 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: December 8, 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 PRINCIPAL AMOUNT OF TEN
UNDERWRITERS YEAR NOTES TO BE PURCHASED YEAR NOTES TO BE PURCHASED
Prudential Securities $ 37,500,000 $ 25,000,000
Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc. 37,500,000 25,000,000
NationsBanc ▇▇▇▇▇▇▇▇▇▇ 37,500,000 25,000,000
Securities, Inc.
Salomon Brothers Inc 37,500,000 25,000,000
TOTAL $150,000,000 $100,000,000
============ ============
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. The Company 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. The execution, delivery, and performance of the Underwriting
Agreement and the Indenture and the consummation of the transactions
contemplated hereby and thereby
A-1
including the sale of and issuance of the Notes by the Company 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;
9. 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.
10. 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.
11. The Company is not in violation or breach of, or in default with
respect to, any term of its articles of incorporation or bylaws. The
Company is not in violation of any federal or state law or regulation
relating to its 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.
12. 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.
13. 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
A-2
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; and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company public
officials.
A-3
EXHIBIT B
Form of opinion of Stroock & ▇▇▇▇▇▇▇ & ▇▇▇▇▇
pursuant to Section 5(c) of the Underwriting Agreement
1. 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).
2. No legal or governmental proceedings are pending to which the
Company is a party or to which the property of the Company 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 with respect to any of its
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.
3. 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, 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).
4. 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 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, or any of its properties or assets is
required for the execution,
B-1
delivery and performance of the Underwriting Agreement and the Indenture or
the consummation of the transactions contemplated hereby or thereby 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.
5. 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.
6. 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;
7. 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.
8. 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.
9. 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
B-2
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.
10. 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.
11. 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; and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company and public
officials.
B-3