Exhibit 1.3
EXECUTION COPY
CLASSNOTES TRUST 1997-I
$115,000,000 AUCTION RATE ASSET BACKED NOTES
SERIES 1997-2
UNDERWRITING AGREEMENT
December 19, 1997
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Trans-World Insurance Company, an Arizona corporation doing business
as Educaid ("TWIC"), and ClassNotes, Inc., a Delaware Corporation ("ClassNotes"
and, together with TWIC, the "Companies"), each a wholly owned subsidiary of The
Money Store Inc., a New Jersey corporation ("The Money Store"), have formed a
trust known as ClassNotes Trust 1997-I (the "Trust") under the laws of the
Commonwealth of Pennsylvania and the Companies propose to cause the Trust to
sell to ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (the "Underwriter"), pursuant to the terms of this
Underwriting Agreement, $115,000,000 Asset Backed Notes, Series 1997-2, Class
A-5 and Asset Backed Notes, Series 1997-2 Class A-6 (the "Notes"). It is
understood that the Companies are entering into an underwriting agreement dated
the date hereof (the "LIBOR Rate Underwriting Agreement") among the Companies,
the Trust, Salomon Brothers Inc and First Union Mortgage Capital Corp. providing
for the sale of the Trusts $150,000,000 Asset Backed Notes, Series 1997-2, Class
A-4 (the "Class A-4 Notes"). This Agreement and the LIBOR Rate Underwriting
Agreement are referred to herein collectively as, the "Underwriting Agreements.
The York Bank and Trust Company, a Pennsylvania bank and trust company, will act
as eligible lender trustee (the "Eligible Lender Trustee") of the Trust. The
Notes will be issued under an indenture (the "Master Indenture") between the
Trust and Bankers Trust Company, as indenture trustee ("Indenture Trustee"), as
supplemented by a related Second Terms Supplement (the "Second Terms Supplement"
and collectively with the Master Indenture, the "Indenture"). Upon issuance, the
Notes will be secured by, among other things, Financed Student Loans (as defined
in the Sale and Servicing Agreement referred to below) pledged to the Indenture
Trustee and described in the Prospectus (as defined in Section 3 below). This
Agreement, the Sale and Servicing Agreement, the Indenture and the
Indemnification Agreement dated December 24, 1997, among Ambac Assurance
Corporation, The Money Store and the Underwriter shall collectively hereinafter
be referred to as the "Basic Documents." Capitalized terms used herein without
definition shall have the meanings ascribed to them in the First Supplemental
Sale and Servicing Agreement dated as of December 24, 1997, the ("Sale and
Servicing Agreement") among the Trust, the Companies, the Eligible Lender
Trustee and The Money Store or the Prospectus.
The Companies propose, upon the terms and conditions set forth herein,
to cause the Trust to enter into an agreement (the "Terms Agreement") providing
for the sale of the Notes to the Underwriter. The Terms Agreement shall specify,
among other matters, the principal amount of the Notes to be sold, the class
designations, the interest rate for each such class and, if variable, the
initial interest rate and the interest rate adjustment dates, any terms not
otherwise specified in the Master Indenture, the price at which the Notes are to
be purchased by the Underwriter or the method by which the price at which the
Notes are to be purchased will be determined. The Terms Agreement, which shall
be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication among the
Underwriter, the Companies, the Trust and The Money Store.
The Companies, the Trust and The Money Store wish to confirm as
follows this agreement with the Underwriter in connection with the purchase and
resale of the Notes.
1. AGREEMENTS TO SELL, PURCHASE AND RESELL. (a) The Trust hereby
agrees, subject to all the terms and conditions set forth herein and in the
Terms Agreement, to sell to the Underwriter and, upon the basis of the
representations, warranties and agreements of the Companies and The Money Store
herein contained and subject to all the terms and conditions set forth herein
and in the Terms Agreement, the Underwriter agrees to purchase from the Trust
all of the Notes at such respective purchase prices as may be described in the
Terms Agreement executed by the Companies, the Trust, The Money Store and the
Underwriter pursuant to the terms hereof.
(b) It is understood that the Underwriter proposes to offer the Notes
for sale to the public (which may include selected dealers) as set forth in the
Prospectus.
2. DELIVERY OF THE NOTES AND PAYMENT THEREFOR. Delivery to the
Underwriter of and payment for the Notes to be sold pursuant to the Terms
Agreement shall be made at the office of Stroock & Stroock & ▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00 A.M., New York City time, on
December 24, 1997 (the "Closing Date"). The place of such closing and the
Closing Date may be varied by agreement among the Underwriter, the Trust and the
Companies.
The Notes will be delivered to the Underwriter against payment of the
purchase price therefor to the Trust in Federal Funds, by wire, or such other
form of payment as to which the parties may agree. Each Class of Notes will be
evidenced by a single global security in definitive form and/or by additional
definitive securities, and will be registered, in the case of the global Classes
of Notes, in the name of Cede & Co. as nominee of The Depository Trust Company
("DTC"), and in the other cases, in such names and in such denominations as the
Underwriter shall request prior to 1:00 p.m., New York City time, no later than
the business day preceding the Closing Date. The Notes to be delivered to the
Underwriter shall be made available to the Underwriter in New York City for
inspection and packaging not later than 9:30 a.m., New York City time, on the
business day next preceding the Closing Date.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANIES AND THE MONEY
STORE. The Companies and The Money Store represent and warrant to the
Underwriter that:
(a) A registration statement on Form S-3 (No. 333- 18877), including a
prospectus and such amendments thereto as may have been required to the date
hereof, relating to the Notes and the offering thereof in accordance with Rule
415 under the Securities Act of 1933, as amended (the "Act"), has been filed
with the Securities and Exchange Commission (the "SEC") and such registration
statement, as amended, has become effective; such registration statement, as
amended, and the prospectus relating to the sale of the Notes offered thereby
constituting a part thereof, as amended or supplemented (including the base
prospectus and any prospectus supplement filed with the Commission pursuant to
Rule 424(b) under the Act) are respectively referred to herein as the
"Registration Statement" and the "Prospectus"; and the conditions to the use of
a registration statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, and the conditions of Rule 415 under the Act, have
been satisfied with respect to the Registration Statement;
(b) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all respects to the
requirements of the Act, the rules and regulations of the SEC (the "Rules and
Regulations") and the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder (the "Trust Indenture Act"), and did not include any
untrue statement of a material fact or, in the case of the Registration
Statement, omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and, in the case of the
Prospectus, omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and on the date of this Agreement and the Terms Agreement, the
Registration Statement and the Prospectus will conform in all respects to the
requirements of the Act, the Rules and Regulations and the Trust Indenture Act,
and neither of such documents included or will include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however,
that the foregoing does not apply to statements in or omissions from the
Registration Statement or the Prospectus based upon written information
furnished to the Company by the Underwriter specifically for use therein.
(c) The Commission has not issued and, to the best knowledge of the
Companies, is not threatening to issue any order preventing or suspending the
use of the Registration Statement.
(d) As of each Closing Date, each consent, approval, authorization or
order of, or filing with, any court or governmental agency or body which is
required to be obtained or made by the Companies or their affiliates for the
consummation of the transactions contemplated by this Agreement and the Terms
Agreement shall have been obtained, except as otherwise provided in the Basic
Documents.
(e) The Master Indenture and the Second Terms Supplement relating to
the Notes to be sold on the Closing Date (the " Second Terms Supplement") have
been duly and validly authorized by the Trust and, upon their execution and
delivery by the Trust and assuming due authorization, execution and delivery by
the Trustee, will be valid and binding agreements of the Trust, enforceable in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally and conform in all material respects to the description thereof in the
Prospectus.
(f) The Notes have been duly authorized by the Trust and on the
Closing Date, when executed by the Trust and authenticated by the Trustee in
accordance with the Indenture, and delivered to the Underwriter against payment
therefor in accordance with the terms hereof, will have been validly issued and
delivered, and will constitute valid and binding obligations of the Trust
entitled to the benefits of the Indenture and enforceable in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance or other similar laws relating to
or affecting creditors' rights generally and court decisions with respect
thereto, and the Notes will conform in all material respects to the description
thereof in the Prospectus.
(g) Each of TWIC, ClassNotes and The Money Store is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Arizona, the State of Delaware and the State of New Jersey, respectively, with
full corporate power and authority to own, lease and operate its properties and
to conduct its business as conducted on the date hereof, and is duly registered
and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
so to register or qualify does not have a material adverse effect on the
condition (financial or other), business, prospects, properties, net worth or
results of operations of TWIC, ClassNotes or The Money Store, respectively.
(h) The Trust is a business trust duly formed and validly existing
under the laws of the Commonwealth of Pennsylvania with full power and authority
to own and pledge its assets and to issue the Notes as described in the
Prospectus.
(i) There are no legal or governmental proceedings pending or, to the
knowledge of the Companies or The Money Store, threatened, against the
Companies, The Money Store or the Trust, or to which the Companies, The Money
Store, the Trust or any of their respective properties is subject, that are not
disclosed in the Prospectus or that will not be disclosed in any subsequent
amendment or supplement to the Prospectus and which, if adversely decided, are
reasonably likely to materially affect the issuance of the Notes or the
consummation of the transactions contemplated hereby or by the Basic Documents.
(j) Neither the offer, sale or delivery of the Notes by the Trust nor
the execution, delivery or performance of this Agreement and the Terms Agreement
by the Companies, the Trust and The Money Store nor the consummation by the
Companies, the Trust and The Money Store of the transactions contemplated hereby
or thereby (i) requires or will require any consent, approval, authorization or
other order of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official (except for
compliance with the securities or Blue Sky laws of various jurisdictions, the
qualification of the Indenture under the Trust Indenture Act and such other
consents, approvals or authorizations as shall have been obtained prior to the
Closing Date) or conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the organizational documents or
bylaws of the Companies, the Trust or The Money Store or (ii) conflicts or will
conflict with or constitutes or will constitute a breach of, or a default under,
in any material respect, any material agreement, indenture, lease or other
instrument to which the Companies, the Trust or The Money Store is a party or by
which the Companies, the Trust or The Money Store or any of their respective
properties may be bound, or violates or will violate in any material respect any
statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Companies, the Trust or The Money Store or any of their
respective properties, or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Companies, the Trust or
The Money Store pursuant to the terms of any agreement or instrument to which
any is a party or by which any may be bound or to which any of their respective
properties is subject other than as contemplated by the Basic Documents.
(k) The Companies, the Trust and The Money Store each have all
requisite power and authority to execute, deliver and perform its obligations
under this Agreement and the Terms Agreement; the execution and delivery of, and
the performance by each of the Companies, the Trust and The Money Store of its
respective obligations under, this Agreement have been duly and validly
authorized by the Companies, the Trust and The Money Store, respectively, (and
the execution, delivery of, and the performance by each of the Companies, the
Trust and The Money Store of its respective obligations under, the Terms
Agreement will be duly and validly authorized by the Companies, the Trust and
The Money Store, respectively) and this Agreement has been and the Terms
Agreement will be, duly executed and delivered by each of them and constitutes
or in the case of the Terms Agreement, will constitute, the valid and legally
binding agreement of each of them, enforceable against each of them in
accordance with its terms, except as the enforcement hereof may be limited by
bankruptcy, insolvency, moratorium, fraudulent conveyance or other similar laws
relating to or affecting creditors' rights generally and court decisions with
respect thereto and subject to the applicability of general principles of
equity, and except as rights to indemnity and contribution hereunder may be
limited by Federal or state securities laws or principles of public policy.
(l) Each of the Companies has, and has no reason to believe that any
facts exist which would result in the revocation or termination of, such
permits, licenses, agreements, and other approvals or authorizations of
governmental or regulatory authorities ("Permits") as are necessary under
applicable law to originate hold and otherwise deal in Financed Student Loans,
except to the extent that the failure to have such Permits would not have a
material adverse effect on the ability of such Company to provide Financed
Student Loans to the Trust.
(m) Neither the Trust nor the Company is subject to registration as an
"investment company" under the Investment Company Act of 1940, as amended (the
"1940 Act").
(n) The representations and warranties made by (i) the Trust in the
Indenture and made in any officer's certificate of the Eligible Lender Trustee
delivered pursuant to the Indenture and (ii) the Companies and The Money Store
in the Sale and Servicing Agreement and made in any Officer's Certificate of the
Companies or The Money Store will be true and correct at the time made and on
and as of the Closing Date.
4. AGREEMENTS OF THE COMPANIES AND THE MONEY STORE. The Companies and
The Money Store agree with the Underwriter as follows:
(a) In connection with the execution of the Terms Agreement, the
Companies will prepare a supplement to the Prospectus setting forth the amount
of the Notes covered thereby and the terms thereof not otherwise specified in
the Prospectus, the price at which the Notes are to be purchased by the
Underwriter, either the initial public offering price or the method by which the
price at which the Notes are to be sold will be determined, the selling
concessions and reallowances, if any, and such other information as the
Underwriter and the Companies deem appropriate in connection with the offering
of the Notes, and the Companies will timely file such supplement to the
prospectus with the SEC pursuant to Rule 424(b) under the Act, but the Companies
will not file any amendments to the Registration Statement as in effect with
respect to the Notes or any amendments or supplements to the Prospectus, unless
it shall first have delivered copies of such amendments or supplements to the
Underwriter, or if the Underwriter shall have reasonably objected thereto
promptly after receipt thereof; the Companies will immediately advise the
Underwriter or the Underwriter's counsel (i) when notice is received from the
SEC that any post- effective amendment to the Registration Statement has become
or will become effective and (ii) of any order or communication suspending or
preventing, or threatening to suspend or prevent, the offer and sale of the
Notes or of any proceedings or examinations that may lead to such an order or
communication, whether by or of the SEC or any authority administering any state
securities or Blue Sky Law, as soon as the Companies are advised thereof, and
will use their best efforts to prevent the issuance of any such order or
communication and to obtain as soon as possible its lifting, if issued.
(b) If, at any time when the Prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
such Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or supplement
the Prospectus to comply with the Act or the Rules and Regulations, the
Companies promptly will prepare and file with the SEC, an amendment or
supplement to such Prospectus that will correct such statement or omission or an
amendment that will effect such compliance.
(c) The Companies will immediately inform the Underwriter (i) of the
receipt by the Companies or the Trust of any communication from the SEC or any
state securities authority concerning the offering or sale of the Notes and (ii)
of the commencement of any lawsuit or proceeding to which either the Companies
or the Trust is a party relating to the offering or sale of the Notes.
(d) The Companies will furnish to the Underwriter, without charge,
copies of the Registration Statement (including all documents and exhibits
thereto or incorporated by reference therein), the Prospectus, and all
amendments and supplements to such documents relating to the Notes, in each case
in such quantities as the Underwriter may reasonably request.
(e) No amendment or supplement will be made to the Registration
Statement or Prospectus which the Underwriter shall not previously have been
advised or to which it shall reasonably object after being so advised.
(f) The Companies will cooperate with the Underwriter and with its
counsel in connection with the qualification of, or procurement of exemptions
with respect to, the Notes for offering and sale by the Underwriter and by
dealers under the securities or Blue Sky laws of such jurisdictions as the
Underwriter may designate and will file or cause the Trust to file such consents
to service of process or other documents necessary or appropriate in order to
effect such qualification or exemptions; provided that in no event shall either
of the Companies or the Trust be obligated 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 service of process in suits, other than those arising out of the
offering or sale of the Notes, in any jurisdiction where it is not now so
subject.
(g) The Companies and the Trust consent to the use, in accordance with
the securities or Blue Sky laws of such jurisdictions in which the Notes are
offered by the Underwriter and by dealers, of the Prospectus furnished by the
Company.
(h) To the extent, if any, that the rating or ratings provided with
respect to a series of Notes by the rating agency or agencies that initially
rate a series of Notes is conditional upon the furnishing of documents or the
taking of any other actions by the Companies or the Trust, the Companies shall
cause to be furnished such documents and such other actions to be taken.
(i) So long as any of the Notes are outstanding, the Companies or the
Trust will furnish to the Underwriter (i) as soon as available, a copy of each
document relating to the Trust or the Notes required to be filed with the SEC
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or any order of the SEC thereunder, and (ii) such other information
concerning the Companies, The Money Store or the Trust as the Underwriter may
request from time to time.
(j) If this Agreement shall terminate or shall be terminated after
execution and delivery pursuant to any provisions hereof (otherwise than by
notice given by the Underwriter terminating this Agreement pursuant to Section 8
or Section 9 hereof) or if this Agreement shall be terminated by the Underwriter
because of any failure or refusal on the part of the Companies, the Trust or The
Money Store to comply with the terms or fulfill any of the conditions of this
Agreement, the Companies and The Money Store agree jointly and severally to
reimburse the Underwriter for all out-of-pocket expenses (including fees and
expenses of its counsel) reasonably incurred in connection herewith, but without
any further obligation on the part of the Companies or The Money Store for loss
of profits or otherwise.
(k) The net proceeds from the sale of the Notes hereunder will be
applied substantially in accordance with the description set forth in the
Prospectus.
(l) Except as stated in this Agreement and in the Prospectus, neither
the Companies, the Trust nor The Money Store has taken, nor will any of them
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 the
Notes to facilitate the sale or resale of the Notes.
5. INDEMNIFICATION AND CONTRIBUTION. (a) The Companies and The Money
Store jointly and severally agree to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Prospectus, or in any amendment or supplement thereto, or any
preliminary prospectus, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission which
has been made therein or omitted therefrom in reliance upon and in conformity
with the information relating to the Underwriter furnished in writing to the
Companies by or on behalf of the Underwriter expressly for use in connection
therewith; PROVIDED, HOWEVER, that the indemnification contained in this
paragraph (a) with respect to any preliminary prospectus shall not inure to the
benefit of the Underwriter (or to the benefit of any person controlling any
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Notes covered thereby by the Underwriter to any
person if the untrue statement or alleged untrue statement or omission or
alleged omission of a material fact contained in such preliminary prospectus was
corrected in the final Prospectus relating to such series of Notes and the
Underwriter sold Notes to that person without sending or giving at or prior to
the written confirmation of such sale, a copy of the final Prospectus (as then
amended or supplemented) if the Companies have previously furnished sufficient
copies thereof to the Underwriter. The foregoing indemnity agreement shall be in
addition to any liability which the Companies or The Money Store may otherwise
have.
(b) If any action, suit or proceeding shall be brought against the
Underwriter or any person controlling the Underwriter in respect of which
indemnity may be sought against the Companies or The Money Store, the
Underwriter or such controlling person shall promptly notify the parties against
whom indemnification is being sought (the "indemnifying parties"), and such
indemnifying parties shall assume the defense thereof, including the employment
of counsel and payment of all fees and expenses. The Underwriter or any such
controlling person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the indemnifying parties have agreed in
writing to pay such fees and expenses, (ii) the indemnifying parties have failed
to assume the defense and employ counsel, or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both the
Underwriter or such controlling person and the indemnifying parties and the
Underwriter or such controlling person shall have been advised by its counsel
that representation of such indemnified party and any indemnifying party by the
same counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them (in which
case the indemnifying party shall not have the right to assume the defense of
such action, suit or proceeding on behalf of the Underwriter or such controlling
person). It is understood, however, that the indemnifying parties shall, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for the Underwriter and
controlling persons not having actual or potential differing interests with the
Underwriter or among themselves, which firm shall be designated in writing by
the Underwriter, and that all such fees and expenses shall be reimbursed on a
monthly basis as provided in paragraph (a) hereof. The indemnifying parties
shall not be liable for any settlement of any such action, suit or proceeding
effected without their written consent, but if settled with such written
consent, or if there be a final judgment for the plaintiff in any such action,
suit or proceeding, the indemnifying parties agree to indemnify and hold
harmless the Underwriter, to the extent provided in paragraph (a), and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) The Underwriter agrees to indemnify and hold harmless the
Companies, The Money Store and their respective directors and officers, and any
person who controls the Companies or The Money Store within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act to the same extent as
the indemnity from the Companies and The Money Store to the Underwriter set
forth in paragraph (a) hereof, but only with respect to information relating to
the Underwriter furnished in writing by or on behalf of the Underwriter
expressly for use in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus. If any
action, suit or proceeding shall be brought against the Companies or The Money
Store, any of their respective directors or officers, or any such controlling
person based on the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus and in respect of
which indemnity may be sought against the Underwriter pursuant to this paragraph
(c), the Underwriter shall have the rights and duties given to the Companies and
The Money Store by paragraph (b) above (except that if the Companies or The
Money Store shall have assumed the defense thereof the Underwriter shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
Underwriter's expense), and the Companies and The Money Store, their respective
directors and officers, and any such controlling person shall have the rights
and duties given to the Underwriter by paragraph (b) above. The foregoing
indemnity agreement shall be in addition to any liability which the Underwriter
may otherwise have.
(d) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Companies and The Money Store on the one hand and the Underwriter on the other
hand from the offering of the Notes, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Companies and The Money Store on the
one hand and the Underwriter on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Companies and The Money Store on the one hand and the
Underwriter on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes (before deducting expenses)
received by the Companies bear to the total underwriting discounts and
commissions received by the Underwriter. The relative fault of the Companies and
The Money Store on the one hand and the Underwriter on the other hand 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 the Companies or The Money
Store on the one hand or by the Underwriter on the other hand and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Companies and the Underwriter agree that it would not be just
and equitable if contribution pursuant to this Section 5 were determined by a
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 5, the Underwriter
shall not be required to contribute any amount in excess of the amount received
by the Underwriter over the price paid by the Underwriter for the Notes
purchased by it and distributed to the public less the amount of any damages
which the Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. 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.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 5 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 5 and the
representations and warranties of the Companies, The Money Store and the
Underwriter set forth in this Agreement shall remain operative and in full force
and effect, regardless of (i) any investigation made by or on behalf of the
Underwriter, the Companies or The Money Store or any person controlling any of
them or their respective directors or officers, (ii) acceptance of any Notes and
payment therefor hereunder, and (iii) any termination of this Agreement. A
successor to the Underwriter, the Companies or The Money Store or any person
controlling any of them or their respective directors or officers, shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 5.
6. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter to purchase the Notes hereunder are subject to the following
conditions:
(a) All actions required to be taken and all filings required to be
made by the Companies under the Act prior to the sale of the Notes shall have
been duly taken or made. At and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Companies or the Underwriter, shall be contemplated by the
Commission.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting the condition (financial or other), business,
properties, net worth, or results of operations of the Companies, The Money
Store or the Surety Provider not contemplated by the Registration Statement,
which in the opinion of the Underwriter, would materially adversely affect the
market for the Notes, or (ii) any event or development which makes any statement
made in the Registration Statement or Prospectus untrue or which, in the opinion
of the Companies and their counsel or the Underwriter and its counsel, requires
the filing of any amendment to or change in the Registration Statement or
Prospectus in order to state a material fact required by any law to be stated
therein or necessary in order to make the statements therein not misleading, if
amending or supplementing the Registration Statement or Prospectus to reflect
such event or development would, in the opinion of the Underwriter, materially
adversely affect the market for the Notes.
(c) The Underwriter shall have received on the Closing Date opinions
of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., special Arizona counsel for the Companies,
and ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, special counsel for the Companies, dated the
Closing Date and addressed to the Underwriter in form and scope satisfactory to
the Underwriter and its counsel.
(d) The Underwriter shall have received on the Closing Date an opinion
of ▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel of the Companies and The Money Store,
dated the Closing Date and addressed to the Underwriter in form and scope
satisfactory to the Underwriter and its counsel.
(e) The Underwriter shall have received on the Closing Date an opinion
of ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Eligible Lender Trustee, dated the
Closing Date and addressed to the Underwriter in form and scope satisfactory to
the Underwriter and its counsel.
(f) The Underwriter shall have received on the Closing Date an opinion
of counsel for Ambac Assurance Corporation (the "Surety Provider"), dated the
Closing Date and addressed to the Underwriter in form and scope satisfactory to
the Underwriter and its counsel.
(g) The Underwriter shall have received on the Closing Date an opinion
of ▇▇▇▇▇ & Case, Esqs., counsel for the Indenture Trustee, dated the Closing
Date and addressed to the Underwriter in form and scope satisfactory to the
Underwriter and its counsel.
(h) The Underwriter shall have received on the Closing Date an opinion
or opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriter, dated
the Closing Date, and addressed to the Underwriter, in form and scope
satisfactory to the Underwriter.
(i) The Underwriter shall have received on the Closing Date from KPMG
Peat Marwick LLP a letter dated the Closing Date, and in form and substance
satisfactory to the Underwriter, to the effect that they have carried out
certain specified procedures, not constituting an audit, with respect to certain
information regarding the Financed Student Loans and setting forth the results
of such specified procedures.
(j) (i) There shall not have been, since the respective dates as of
which information is given in the Registration Statement (or any amendment or
supplement thereto), except as may otherwise be stated therein, any material
adverse change in the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Companies or of The Money
Store, and (ii) all the representations and warranties of the Companies and The
Money Store contained in this Agreement and the Basic Documents shall be true
and correct in all material respects on and as of the date hereof and on and as
of the Closing Date as if made on and as of the Closing Date and the Underwriter
shall have received a certificate, dated the Closing Date and signed by an
executive officer of the Companies and The Money Store, to the effect set forth
in this Section 6(j) and in Section 6(k) hereof.
(k) Neither of the Companies nor The Money Store shall have failed at
or prior to the Closing Date to have performed or complied with any of its
respective agreements herein contained and required to be performed or complied
with by it hereunder at or prior to the Closing Date.
(l) The Underwriter shall have received by instrument dated the
Closing Date (at the option of the Underwriter), in lieu of or in addition to
the opinions referred to in clauses (c) through (h) of this Section (6), the
right to rely on opinions provided by such counsel and all other counsel under
the terms of the Basic Documents or to ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") and Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard & Poor's").
(m) Moody's and Standard & Poor's shall have rated each class of Notes
"Aaa" and "AAA", respectively, and there shall not have been any announcement by
Moody's or Standard & Poor's that (i) it is downgrading any of its ratings
assigned to any class of Notes or (ii) it is reviewing its ratings assigned to
any class of Notes with a view to possible downgrading, or with negative
implications, or direction not determined.
(n) The Surety Provider shall have provided (i) a Note Surety Bond
relating to the Notes, (ii) a certificate dated the Closing Date and signed by
an executive officer of the Surety Provider with respect to the accuracy of the
information relating to the Surety Provider contained in the Prospectus and
(iii) a letter addressed to the Underwriter and dated the date hereof from KPMG
Peat Marwick LLP, independent certified public accountants, consenting to the
inclusion of its report on the financial statements of the Surety Provider in
the Prospectus.
(p) Deposits required by the Sale and Servicing Agreement into the
Pre-Funding Account, Capitalized Pre-Funding Account and Capitalized Interest
Account shall have been made.
(q) The Companies shall have furnished or caused to be furnished to
the Underwriter an executed copy of each of the Basic Documents and such further
certificates and documents as the Underwriter shall have requested.
(r) Simultaneously with or prior to the Closing Date, $115,000,000
aggregate initial principal amount of Class A-4 Notes have been sold to ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Inc. and First Union Capital Markets Corp.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter.
Any certificate or document signed by any officer of the Companies or
The Money Store and delivered to the Underwriter, or to counsel for the
Underwriter, shall be deemed a representation and warranty by the Companies or
The Money Store, respectively, to the Underwriter as to the statements made
therein.
7. EXPENSES. The Companies and The Money Store agree to pay or to
otherwise cause the payment of the following costs and expenses and all other
costs and expenses incident to the performance by them and the Trust of their
respective obligations hereunder: (i) the preparation, printing or reproduction
of the Registration Statement, each Prospectus and each amendment or supplement
to any of them, this Agreement, the Terms Agreement and each other Basic
Document; (ii) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, each Prospectus and all amendments or supplements to
any of them as may be reasonably requested for use in connection with the
offering and sale of the Notes; (iii) the preparation, printing, authentication,
issuance and delivery of definitive certificates for the Notes; (iv) the
printing (or reproduction) and delivery of this Agreement, the preliminary and
supplemental Blue Sky Memoranda and all other agreements or documents printed
(or reproduced) and delivered in connection with the offering of the Notes; (v)
qualification of the Indenture under the Trust Indenture Act; (vi) the
qualification of the Notes for offer and sale under the securities or Blue Sky
laws of the several states as provided in Section 3(h) hereof (including the
reasonable fees, expenses and disbursements of counsel for the Underwriter
relating to the preparation, printing or reproduction, and delivery of the
preliminary and supplemental Blue Sky Memoranda and such qualification); (vii)
the fees and disbursements of (A) the Company's counsel, (B) the Underwriter'
counsel (provided, however, that the Underwriter shall be responsible for such
portion of such fees and disbursements as may be agreed upon between the
Underwriters and The Money Store), (C) the Indenture Trustee and its counsel,
(D) the Surety Provider and its counsel and accountants, (E) the Eligible Lender
Trustee and its counsel, (F) the Depository Trust Company in connection with the
book-entry registration of the Notes and (G) KPMG Peat Marwick LLP, accountants
for the Companies and issuer of the Comfort Letter; and (viii) the fees charged
by Moody's and Standard & Poor's for rating the Notes.
8. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective
upon the execution and delivery hereof by all the parties hereto. Until such
time as this Agreement shall have become effective, it may be terminated by the
Companies or The Money Store, by notifying the Underwriter, or by the
Underwriter, by notifying the Companies.
Any notice under this Section 8 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
9. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in the absolute discretion of the Underwriter, without liability on
the part of the Underwriter to the Companies, the Trust or The Money Store, by
notice to the Company, the Trust and The Money Store, if prior to the Closing
Date, (i) trading in securities generally on the New York Stock Exchange,
American Stock Exchange or the Nasdaq National Market shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or state
authorities, (iii) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Underwriter, impracticable or inadvisable to commence or continue the
offering of the Notes on the terms set forth in the Prospectus, as applicable,
or to enforce contracts for the resale of the Notes by the Underwriter, (iv)
legislation shall be enacted by the Congress of the United States or a decision
by a court of the United States or the Tax Court of the United States shall be
rendered, or an officially published ruling, regulation, proposed regulation or
official statement by or on behalf of the Treasury Department of the United
States, the Internal Revenue Service or any other governmental agency shall be
made, with respect to federal taxation upon revenues or other income of the
general character expected to be pledged under the Indenture or upon interest
received on securities of the general character of the Notes, or which would
have the effect of changing, directly or indirectly, the federal income tax
consequences of interest on securities of the general character of the Notes in
the hands of the holders thereof, which in the opinion of counsel to the
Underwriter materially affects the market price of the Notes, or (v) legislation
shall be enacted by the Commonwealth of Pennsylvania, or a decision by a court
of competent jurisdiction of the Commonwealth of Pennsylvania or any
administrative tribunal of the Commonwealth of Pennsylvania or other
governmental agency or department thereof shall be rendered with respect to
taxation by the Commonwealth of Pennsylvania or any of its political
subdivisions upon revenues or other income of the general character expected to
be pledged under the Indenture or upon interest received on securities of the
general character of the Notes, or which would have the effect of changing,
directly or indirectly, the tax consequences under Commonwealth of Pennsylvania
tax law of interest on securities of the general character of the Notes in the
hands of the holders thereof, which in the opinion of counsel to the Underwriter
materially affects the market price of the Notes. Notice of such termination may
be given to the Company, the Trust and The Money Store, by telegram, telecopy or
telephone and shall be subsequently confirmed by letter.
10. INFORMATION FURNISHED BY THE UNDERWRITER. The statements set forth
under the heading "Plan of Distribution" in the Prospectus constitute the only
information furnished by or on behalf of the Underwriter as such information is
referred to in Sections 3(b) and 5 hereof. Additional such information may be
provided in connection with the purchase of additional series of Notes by the
Underwriter for inclusion in any Prospectus Supplement and, if so, will be
identified in the Terms Agreement.
11. MISCELLANEOUS. Except as otherwise provided in Sections 4, 8 and 9
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Companies or The Money Store, at
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President
and at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial
Officer, (ii) if to the Trust, to the Eligible Lender Trustee, c/o Dauphin
Deposit Bank and Trust Company, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Office and (iii) if to the Underwriter, to
▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Asset
Finance Group.
This Agreement has been and is made solely for the benefit of the
Underwriter, the Companies, the Trust, The Money Store, their respective
directors, officers, trustees and controlling persons referred to in Section 5
hereof and their respective successors and assigns, to the extent provided
herein, and no other person shall acquire or have any right under or by virtue
of this Agreement. Neither the term "successor" nor the term "successors and
assigns" as used in this Agreement shall include a purchaser from any
Underwriter of any of the Notes in his status as such purchaser.
12. APPLICABLE LAW; COUNTERPARTS. This Agreement, and the Terms
Agreement, shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed within the
State of New York without giving effect to the choice of laws or conflict of
laws principles thereof.
This Agreement, and the Terms Agreement, may be signed in various
counterparts which together constitute one and the same instrument. If signed in
counterparts, this Agreement and the Terms Agreement shall not become effective
unless at least one counterpart hereof or thereof shall have been executed and
delivered on behalf of each party hereto.
Please confirm that the foregoing correctly sets forth the agreement
among the Companies, the Trust, The Money Store and the Underwriter.
Very truly yours,
CLASSNOTES TRUST 1997-I
By: THE YORK BANK AND TRUST
COMPANY, as Eligible Lender
Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
TRANS-WORLD INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
CLASSNOTES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
THE MONEY STORE INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
Confirmed as of the date first above mentioned.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Exhibit A
TRANS-WORLD INSURANCE COMPANY
CLASSNOTES, INC.
Auction Rate Asset Backed Notes
TERMS AGREEMENT
Dated ______, 199_
To: TRANS-WORLD INSURANCE COMPANY
CLASSNOTES, INC.
Re: Underwriting Agreement dated December __, 1997
Issuer: ClassNotes Trust 1997-I
Series Designation: Series 1997-2
TERMS OF THE NOTES:
FINAL MATURITY PRINCIPAL INTEREST PRICE TO
CLASS DATE AMOUNT RATE UNDERWRITERS
----- -------------- --------- -------- ------------
---------
COLLATERAL: The Student Loans to be included in the Collateral are as
described in Schedule A to the First Supplemental Sale and
Servicing Agreement.
CREDIT SUPPORT: Note Surety Bond issued by Ambac Indemnity Corporation.
INITIAL NOTE DISTRIBUTION DATES:
NOTE RATING: "AAA" by Standard and Poor's Corporation and "Aaa" by
▇▇▇▇▇'▇ Investors Service, Inc.
FORM OF NOTES: Book entry
TYPE OF INTEREST RATE: Auction Rate
CLOSING DATE: December 24, 1997
Information Provided by the Underwriters in the
Prospectus Supplement: "Underwriting"
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:_____________________________
Name:
Title:
TRANS-WORLD INSURANCE COMPANY
By:_____________________________
Name: ▇▇▇▇▇▇ Dear
Title: Executive Vice President
CLASSNOTES, INC.
By:_____________________________
Name: ▇▇▇▇▇▇ Dear
Title: Executive Vice President
CLASSNOTES TRUST 1997-I
By: The York Bank and Trust
Company, as Eligible Lender Trustee
By:_____________________________
Name:
Title:
THE MONEY STORE INC.
By:_____________________________
Name:
Title: