Exhibit 1.1
EXECUTION COPY
$1,035,000,000
THE MONEY STORE INC.
The Money Store Asset Backed Certificates
Series 1996-D
UNDERWRITING AGREEMENT
December 13, 1996
▇▇▇▇▇▇ Brothers Inc.
as representative of the Underwriters
3 World Financial Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
The Money Store Inc., a New Jersey corporation (the "Company"), and
each of the Originators listed on Annex A hereto (each an "Originator" and
collectively, the "Originators") hereby confirm their agreement with ▇▇▇▇▇▇
Brothers Inc. ("▇▇▇▇▇▇" or the "Representative") on behalf of the several
Underwriters listed on Annex B hereto (the "Underwriters), with respect to the
delivery by the Company, on behalf of the Originators, of certificates entitled
"The Money Store Asset Backed Certificates, Series 1996-D, Class A-1, Class ▇-▇,
▇▇▇▇▇ ▇-▇, Class A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9,
Class A-10, Class A-11, Class A-12, Class A-13, Class A-14, Class A-15 and Class
A-16" (the "Class A Certificates") to be issued pursuant to a Pooling and
Servicing Agreement, to be dated as of November 30, 1996 (the "Pooling and
Servicing Agreement"), among the Company, as Representative, Servicer and Claims
Administrator, the Originators and The Bank of New York, as trustee ("Bank of
New York" or, in its capacity as trustee under the Pooling and Servicing
Agreement, the "Trustee"). The initial principal amount of each Class of Class A
Certificates will be as set forth on Annex B hereto. The Class A Certificates
represent the senior beneficial interests in a trust fund (the "Trust Fund")
that will consist at the Closing Time (as defined in Section 2 hereof) primarily
of four sub- trusts, consisting of one pool of fixed rate first and second lien
home equity mortgage loans (the "Pool I Home Equity Loans"), one pool of
adjustable rate first lien home equity mortgage loans (the "Pool II Home Equity
Loans"), one pool of home improvement mortgage loans (the "Pool III Home
Improvement Loans") and one pool of multifamily mortgage loans (the "Pool IV
Multifamily Loans"), amounts to be deposited in the Pre-Funding Account and
certain related properties. The Pool I Home Equity Loans, Pool II Home Equity
Loans, Pool III Home Improvement Loans and Pool IV Multifamily Loans are
referred to herein collectively as the "Loans". Simultaneously with the issuance
and delivery of the Class A Certificates as contemplated herein, the Company, on
behalf of the Originators, will cause to be issued under the Pooling and
Servicing Agreement certificates entitled "The Money Store Asset Backed
Certificates, Series 1996-D, Class R" (the "Class R Certificates,") and "The
Money Store Asset Backed Certificates, Series 1996-D, Class X" (the "Class X
Certificates" and, together with the Class A Certificates and Class R
Certificates, the "Certificates"). The Certificates will evidence fractional
interests in the Trust Fund. The Class R Certificates and Class X Certificates
will be retained by the Company and TMS Special Holdings, Inc. and are not being
delivered to the Underwriters hereunder.
On or prior to the date of issuance of the Certificates, the Company
will obtain from MBIA Insurance Corporation ("MBIA") certificate guaranty
insurance policies (the "MBIA Policies") on behalf of the Trustee for the
benefit of the holders of the Class A Certificates. An election will be made to
treat certain assets of the Trust Fund as a real estate mortgage investment
conduit ("REMIC") within the meaning of Section 860D of the Internal Revenue
Code of 1986, as amended (the "Code").
Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement.
Prior to the delivery of the Class A Certificates by the Company, on
behalf of the Originators, and the public offering thereof by the Underwriters,
the Company and the Representative, as representative of the Underwriters, shall
enter into an agreement substantially in the form of Exhibit A hereto (the
"Pricing Agreement"). The Pricing Agreement shall be between the Company and the
Representative, as representative of the Underwriters, and shall specify such
applicable information as is indicated in, and be in substantially the form of,
Exhibit A hereto. The offering of the Class A Certificates will be governed by
this Agreement, as supplemented by the Pricing Agreement. From and after the
date of the execution and delivery of the Pricing Agreement, this Agreement
shall be deemed to incorporate the Pricing Agreement.
The Company and the Originators understand that the Underwriters
propose to make a public offering of the Class A Certificates as soon as the
Underwriters deem advisable after the Pricing Agreement has been executed and
delivered.
Section 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
ORIGINATORS.
(a) The Company and the Originators represent and warrant to
each of the Underwriters as of the date hereof and, if the Pricing Agreement is
executed on a date other than the date hereof, as of the date of the Pricing
Agreement (such latter date being hereinafter referred to as the "Representation
Date") as follows:
(i) The Company, on behalf of the Originators, has
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (No. 33-98734) including a
prospectus, and such amendments thereto as may have been required to
the date hereof, relating to the Class A Certificates and the offering
thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"), and such
registration statement, as amended, has become effective. Such
registration statement, as amended, and the prospectus relating to the
sale of the Class A Certificates constituting a part thereof as from
time to time amended or supplemented (including any prospectus
supplement (the "Prospectus Supplement") filed with the Commission
pursuant to Rule 424 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations") and any information
incorporated therein by reference) are respectively referred to herein
as the "Registration Statement" and the "Prospectus." The conditions of
Rule 415 under the 1933 Act have been satisfied with respect to the
Company and the Registration Statement.
(ii) At the time the Registration Statement became
effective and at the Representation Date, the Registration Statement
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, at the
Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Representative, as
representative of the Underwriters, by the Company for use in
connection with the offering of the Class A Certificates which differs
from the Prospectus on file at the Commission at the time the
Registration Statement became effective, in which case at the time it
is first provided to the Representative, as representative of the
Underwriters, for such use) and at Closing Time referred to in Section
2 hereof, will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through the Representative
expressly for use in the Registration Statement or Prospectus; and
provided further, that neither the Company nor the Originators make any
representations or warranties as to any information in any
Computational Materials (as defined in Section 11 below) provided by
any Underwriter to the Company pursuant to Section 11, except to the
extent of any errors in the Computational Materials that are caused by
errors in the pool information provided by the Company to the
applicable Underwriter. The conditions to the use by the Company of a
registration statement on Form S-3 under the 1933 Act, as set forth in
the General Instructions to Form S-3, have been satisfied with respect
to the Registration Statement and the Prospectus.
(iii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, the Originators and their
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, which would have a material adverse
effect on the ability of the Company and the Originators to perform
their obligations under the Basic Documents (as defined below) and, in
the case of the Company, the Indemnification Agreement (as defined
below) and (B) there have been no transactions entered into by the
Company or the Originators or any of their subsidiaries, other than
those in the ordinary course of business, which would have a material
adverse effect on the ability of the Company and the Originators to
perform their obligations under this Agreement, the Pricing Agreement,
the Pooling and Servicing Agreement and the Insurance Agreement dated
as of December 30, 1996 among the Company, the Originators, the Trustee
and MBIA (the "Insurance Agreement") (this Agreement, the Pricing
Agreement, the Pooling and Servicing Agreement, and the Insurance
Agreement being herein referred to, collectively, as the "Basic
Documents") and the Indemnification Agreement dated as of December 30,
1996 (the "Indemnification Agreement") among the Company, MBIA and the
Representative, as representative of the Underwriters.
(iv) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of New Jersey with all requisite power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the
Basic Documents and the Indemnification Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify would
not have a material adverse effect on, (A) the Company's ability to
perform its obligations under the Basic Documents and the
Indemnification Agreement, or (B) the business, properties, financial
position, operations or results of operations of the Company.
(v) Each Originator has been duly organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation with all requisite power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under the Basic Documents; and each Originator is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not
have a material adverse effect on, (A) the Originator's ability to
perform its obligations under the Basic Documents, or (B) the business,
properties, financial position, operations or results of operations of
the Originator.
(vi) Any person who signed this Agreement on behalf of the
Company or the Originators, was, as of the time of such signing and
delivery, and is now duly elected or appointed, qualified and acting,
and the Agreement, as so executed, is duly and validly authorized,
executed, and constitutes the valid, legal and binding agreement of the
Company and each Originator, enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(vii) Any person who signs the Indemnification Agreement on
behalf of the Company, will be, as of the time of such signing and
delivery, duly elected or appointed, qualified and acting, and the
Indemnification Agreement, as so executed, will have been duly and
validly authorized, and, when executed, will constitute the valid,
legal and binding agreement of the Company, enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(viii) The Pooling and Servicing Agreement and the Insurance
Agreement have been duly and validly authorized by the Company and the
Originators and, when executed and delivered by the Company and the
Originators and duly and validly authorized, executed and delivered by
the other parties thereto, will constitute, the valid and binding
agreement of the Company and the Originators, enforceable in accordance
with their terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights in general and by general
principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law; and the Pooling and
Servicing Agreement and the MBIA Policies conform in all material
respects to the statements relating thereto contained in the
Prospectus.
(ix) The Certificates have been duly and validly
authorized by the Company and, when executed and delivered by the
Company and authenticated by the Trustee as specified in the Pooling
and Servicing Agreement and, in the case of the Class A Certificates,
delivered to the Underwriters pursuant to this Agreement, the
Certificates will be duly and validly issued and outstanding and
entitled to the benefits of the Pooling and Servicing Agreement; and
the Certificates conform in all material respects to all statements
relating thereto contained in the Prospectus.
(x) Neither the issuance or delivery of the
Certificates, nor the consummation of any other of the transactions
herein contemplated or in any other Basic Document and, in the case of
the Company, the Indemnification Agreement, nor the execution and
delivery by the Company and the Originators of the Basic Documents and,
in the case of the Company, the Indemnification Agreement nor the
fulfillment of the terms of the Certificates or each Basic Document
and, in the case of the Company, the Indemnification Agreement will
result in the breach of any term or provision of the charter or by-laws
of the Company and the Originators, and the Company and the Originators
are not in breach or violation of or in default (nor has an event
occurred which with notice or lapse of time or both would constitute a
default) under the terms of (A) any material obligation, agreement,
covenant or condition contained in any material contract, indenture,
loan agreement, note, lease or other material instrument to which the
Company or the Originators are a party or by which it may be bound, or
to which any of the property or assets of the Company or the
Originators are subject, or (B) any law, decree, order, rule or
regulation applicable to the Company and the Originators of any court
or supervisory, regulatory, administrative or governmental agency, body
or authority, or arbitrator having jurisdiction over the Company or the
Originators or their properties, the default in or the breach or
violation of which would have a material adverse effect on the Company
or the Originators or the ability of the Company and the Originators to
perform their obligations under the Basic Documents and, in the case of
the Company, the Indemnification Agreement; and neither the issuance or
delivery of the Certificates, nor the consummation of any other of the
transactions herein contemplated, nor the fulfillment of the terms of
the Certificates or the Basic Documents and, in the case of the
Company, the Indemnification Agreement will result in such a breach,
violation or default which would have such a material adverse effect.
(xi) Except as described in the Prospectus, there is no
action, suit or proceeding against or investigation of the Company or
any Originator, now pending, or, to the knowledge of the Company and
the Originators, threatened against the Company or any Originator,
before any court, governmental agency or body (A) which is required to
be disclosed in the Prospectus (other than as disclosed therein) or (B)
(1) asserting the invalidity of any Basic Document, the Indemnification
Agreement or the Certificates, (2) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by the Basic Documents, (3) which would materially and
adversely affect the performance by the Company or any Originator of
its obligations under the Basic Documents, or the validity or
enforceability of any Basic Document or the Certificates and, in the
case of the Company, the Indemnification Agreement or (4) seeking to
adversely affect the federal income tax attributes of the Class A
Certificates described in the Prospectus; all pending legal or
governmental proceedings to which the Company or any Originator is a
party or of which any of its property or assets is the subject which
are not described in the Prospectus, including ordinary routine
litigation incidental to the business, are, considered in the
aggregate, not material to the Company's or any Originator's ability to
perform its obligations under the Basic Documents and, in the case of
the Company, the Indemnification Agreement.
(xii) The Company and each of the Originators possess such
licenses, certificates, authorities or permits issued by the
appropriate state or federal regulatory agencies or governmental bodies
necessary to conduct the businesses now conducted by them (except where
the failure to possess any such license, certificate, authority or
permit would not materially and adversely affect the holders of the
Class A Certificates) and neither the Company nor any of the
Originators has received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authority
or permit which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would materially and adversely
affect the ability of the Company to perform its obligations under the
Basic Documents and the Indemnification Agreement.
(xiii) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
issuance or sale of the Class A Certificates hereunder, except such as
have been obtained or will be obtained prior to the Closing Date and
except as may be required under state securities laws.
(xiv) At the time of execution and delivery of the Pooling
and Servicing Agreement by the Company, the Originators and the
Trustee, the Trustee (or, with respect to the
Pool III Home Improvement Loans, the Co-Trustee) will have
acquired good title on behalf of the Trust Fund to the related Loans,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, and, upon delivery to the Underwriters of
the Class A Certificates which they purchase, the Underwriters will
have good and marketable title to such Class A Certificates free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(xv) The transfer of the Loans to the Trust Fund at
Closing Time will be treated by the Company and the Originators for
financial accounting and reporting purposes as a sale of assets and not
as a pledge of assets to secure debt.
(xvi) Each assignment of Mortgage required to be prepared
pursuant to the Pooling and Servicing Agreement is based on forms
recently utilized by the applicable Originator with respect to
mortgaged properties located in the appropriate jurisdiction and used
in the regular course of the applicable Originator's business. Upon
execution each such assignment will be in recordable form, and it is
reasonable to believe that it will be sufficient to effect the
assignment of the Mortgage to which it relates as provided in the
Pooling and Servicing Agreement.
(xvii) Any taxes, fees and other governmental charges that
are assessed and due in connection with the execution, delivery and
issuance of the Basic Documents, the Indemnification Agreement and the
Class A Certificates which have become due or will become due on or
prior to Closing Time shall have been paid at or prior to Closing Time.
(xviii) The Trust Fund is not required to be registered as an
"investment company" under the Investment Company Act of 1940 (the
"1940 Act").
(b) Any certificate signed by any officer of the Company or
any Originator and delivered to the Representative, as representative of the
Underwriters, or counsel for the Underwriters shall be deemed a representation
and warranty by the Company and such Originator as to the matters covered
thereby.
Section 2. DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company,
on behalf of the Originators, agrees to sell to each Underwriter, severally and
not jointly, and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company, the Class A Certificates set forth opposite its name
in Annex B hereto at the price per Class of Class A Certificate set forth below.
In the event that the pass-through rates for each Class of Class A Certificates
have not been agreed upon and the Pricing Agreement has not been executed and
delivered by all parties thereto by the close of business on the fourth business
day following the date of this Agreement, this Agreement shall terminate
forthwith, without liability of any party to any other party, unless otherwise
agreed upon by the Representative, as representative of the Underwriters, and
the Company.
(b) Delivery of the Class A Certificates shall be made at the offices
of Stroock & Stroock & ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at
such other place as shall be agreed upon by the Underwriter and the Company, at
11:00 A.M., New York City time, on December 30, 1996, or such other time not
later than ten business days after such date as shall be agreed upon by The
Representative, as representative of the Underwriters, and the Company (such
time and date of payment and delivery being herein called "Closing Time").
Each Class of Class A Certificates will initially be represented by
one certificate registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC") (the "DTC Certificates"). The interests of
beneficial owners of the DTC Certificates will be represented by book entries on
the records of DTC and participating members thereof. Definitive certificates
evidencing the Class A Certificates will be available only under the limited
circumstances specified in the Pooling and Servicing Agreement. The interest in
the DTC Certificates to be purchased by the applicable Underwriter will be
delivered by the Company to the applicable Underwriter (which delivery shall be
made through the facilities of DTC) against payment of the purchase price
therefor by a same day federal funds wire payable to the order of the Company,
equal to the sum of (i) 99.898240% of the aggregate principal amount of the
Class A-1 Certificates being purchased by such Underwriter, plus interest
accrued at the Class A-1 Pass-Through Rate, (ii) 99.874600% of the aggregate
principal amount of the Class A-2 Certificates being purchased by such
Underwriter, plus interest accrued at the Class A-2 Pass- Through Rate, (iii)
99.847660% of the aggregate principal amount of the Class A-3 Certificates being
purchased by such Underwriter, plus interest accrued at the Class A-3
Pass-Through Rate, (iv) 99.811290% of the aggregate principal amount of the
Class A-4 Certificates being purchased by such Underwriter, plus interest
accrued at the Class A-4 Pass-Through Rate, (v) 99.744760% of the aggregate
principal amount of the Class A-5 Certificates being purchased by such
Underwriter, plus interest accrued at the Class A-5 Pass-Through Rate, (vi)
99.657010% of the aggregate principal amount of the Class A-6 Certificates being
purchased by such Underwriter, plus interest accrued at the Class A-6
Pass-Through Rate, (vii) 99.578540% of the aggregate principal amount of the
Class A-7 Certificates being purchased by such Underwriter, plus interest
accrued at the Class A-7 Pass-Through Rate, (viii) 99.468590% of the aggregate
principal amount of the Class A-8 Certificates being purchased by such
Underwriter, plus interest accrued at the Class A-8 Pass-Through Rate, (ix)
99.527450% of the aggregate principal amount of the Class ▇- ▇ Certificates
being purchased by such Underwriter, plus interest accrued at the Class A-9
Pass- Through Rate, (▇) ▇▇.▇▇▇▇▇▇% of the aggregate principal amount of the
Class A-10 Certificates being purchased by such Underwriter, plus interest
accrued at the Class A-10 Pass-Through Rate, (xi) 99.900000% of the aggregate
principal amount of the Class A-11 Certificates being purchased by such
Underwriter, plus interest accrued at the Class A-11 Pass-Through Rate, (xii)
99.844530% of the aggregate principal amount of the Class A-12 Certificates
being purchased by such Underwriter, plus interest accrued at the Class A-12
Pass-Through Rate, (xiii) 99.669040% of the aggregate principal amount of the
Class A-13 Certificates being purchased by such Underwriter, plus interest
accrued at the Class A-13 Pass-Through Rate, (xiv) 99.618690% of the aggregate
principal amount of the Class A-14 Certificates being purchased by such
Underwriter, plus interest accrued at the Class A-14 Pass-Through Rate, (xv)
99.570630% of the aggregate principal amount of the Class A-15 Certificates
being purchased by such Underwriter, plus interest accrued at the Class A-15
Pass-Through Rate, and (xvi) 99.679130% of the aggregate principal amount of the
Class A-16 Certificates being purchased by such Underwriter, plus interest
accrued at the Class A-16 Pass-Through Rate. With respect to the Class A-1
through Class A-9 Certificates, inclusive, and the Class A-12 through Class A-16
Certificates, inclusive, interest shall accrue at the applicable Pass-Through
Rate in each case from December 1, 1996 to, but not including, the Closing Time.
With respect to the Class A-10 and Class A-11 Certificates, interest shall
accrue at the applicable Pass-Through Rate from December 15, 1996 to, but not
including, the Closing Time. The purchase price set forth above reflects the
deduction of the underwriter's fee with respect to the principal amount of each
Class of Class A Certificates. The certificates evidencing the Class A
Certificates will be made available for examination and packaging by the
Representative, as representative of the Underwriters, not later than 10:00 A.M.
on the last business day prior to Closing Time.
Section 3. COVENANTS OF THE COMPANY AND THE ORIGINATORS. The Company
and the Originators covenant with each of the Underwriters as follows:
(a) The Company will promptly notify the
Representative, as representative of the Underwriters, and confirm the
notice in writing, (i) of any amendment to the Registration Statement;
(ii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
or for additional information; (iii) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceedings for that
purpose; and (iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Class A
Certificates for sale in any jurisdiction or the initiation or
threatening of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Company will give the Representative, as
representative of the Underwriters, notice of its intention to file or
prepare any amendment to the Registration Statement or any amendment or
supplement to the Prospectus (including any revised prospectus which
the Company proposes for use by the Underwriters in connection with the
offering of the Class A Certificates which differs from the prospectus
on file at the Commission at the time the Registration Statement
becomes effective, whether or not such revised prospectus is required
to be filed pursuant to Rule 424(b) of the 1933 Act Regulations, will
furnish the Representative, as representative of the Underwriters, with
copies of any such amendment or supplement a reasonable amount of time
prior to such proposed filing or use, as the case may be, and, unless
required by law to do so, will not file any such amendment or
supplement or use any such prospectus to which The Representative, as
representative of the Underwriters, or counsel for the Underwriters
shall reasonably object.
(c) The Company will deliver to the Representative,
as representative of the Underwriters, as many signed and as many
conformed copies of the Registration Statement as originally filed and
of each amendment thereto (in each case including exhibits filed
therewith) as the Representative may reasonably request.
(d) The Company will furnish to the Representative,
as representative of the Underwriters, from time to time during the
period when the Prospectus is required to be delivered under the 1933
Act or the Securities Exchange Act of 1934, as amended (the "1934
Act"), such number of copies of the Prospectus (as amended or
supplemented) as the Representative may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it
is necessary, in the reasonable opinion of counsel for the
Underwriters, to amend or supplement the Prospectus in order to make
the Prospectus not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, the Company will
forthwith amend or supplement the Prospectus (in form and substance
satisfactory to counsel for the Underwriters) so that, as so amended or
supplemented, the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances existing
at the time it is delivered to a purchaser, not misleading, and the
Company will furnish to the Representative, as representative of the
Underwriters, a reasonable number of copies of such amendment or
supplement.
(f) The Company and the Originators will
endeavor, in cooperation with the Representative, as
representative of the Underwriters, to qualify the Class A
Certificates for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Representative, as representative of the Underwriters, may designate;
provided, however, that neither the Company nor any Originator shall be
obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified. In each jurisdiction in which the Class A
Certificates have been so qualified, the Company and the Originators
will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period
of not less than one year from the date hereof.
(g) The Company and the Originators will file with
the Commission such reports on Form SR as may be required pursuant to
Rule 463 under the 1933 Act.
(h) So long as any Certificates shall be outstanding,
the Company and the Originators will deliver to the Representative, as
representative of the Underwriters, as promptly as practicable, such
information concerning the Company, the Originators or the
Certificates as the Representative may reasonably request from time to
time.
Section 4. PAYMENT OF EXPENSES. The Company and the Originators will
pay all expenses incident to the performance of their obligations under this
Agreement, including (i) the printing (or other reproducing) and filing of the
Registration Statement as originally filed and of each amendment thereto (other
than amendments relating to the filing of Computational Materials pursuant to
Section 11); (ii) the reproducing of the Basic Documents and the Indemnification
Agreement; (iii) the preparation, printing, issuance and delivery of the
certificates for the DTC Certificates to the Underwriters; (iv) the fees and
disbursements of (A) the Company's counsel, (B) the Underwriters' counsel, (C)
KPMG Peat Marwick, accountants for the Company and issuer of the comfort letter,
(D) the Trustee and the Co-Trustee and their respective counsel and (E) DTC in
connection with the book-entry registration of the DTC Certificates; (v) the
qualification of the Class A Certificates under state securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey; (vi)
the printing (or other reproducing) and delivery to the Underwriters of copies
of the Registration Statement as originally filed and of each amendment thereto,
of each preliminary prospectus and of the Prospectus and any amendments or
supplements thereto; (vii) the fees charged by each of ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's") and Standard & Poor's Rating Services ("Standard &
Poor's") for rating the Class A Certificates; and (viii) the reproducing and
delivery to the Underwriters of copies of the Blue Sky Survey.
If this Agreement is terminated by the Representative, as
representative of the Underwriters, in accordance with the provisions of Section
5 or Section 9(a)(i) (unless, in the case of Section 9(a)(i), such termination
arises from a change or development involving a prospective change in or
affecting the business or properties of MBIA), the Company and the Originators
shall reimburse the Underwriters severally for all of their reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters hereunder are subject, in the Representative's
sole discretion, to the accuracy of the representations and warranties of the
Company and the Originators herein contained, to the performance by the Company
and the Originators of their respective obligations hereunder, and to the
following further conditions:
(a) The Registration Statement shall have
become effective and, at Closing Time, no stop order
suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission. As of the Closing Time, the
Prospectus shall have been filed with the Commission in accordance with
Rule 424 of the 1933 Act Regulations.
(b) At Closing Time, the Representative, as
representative of the Underwriters, shall have received:
(i) The favorable opinion, dated as of
Closing Time, of Stroock & Stroock & ▇▇▇▇▇, counsel for the
Underwriters, to the effect that:
(A) To the best of their knowledge
and information, the Registration Statement is
effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission.
(B) At the time the Registration
Statement became effective and at the Representation
Date, the Registration Statement (other than the
financial, numerical, statistical and quantitative
information included or incorporated therein, as to
which no opinion need be rendered) complied as to
form in all material respects with the requirements
of the 1933 Act and the Rules and Regulations
thereunder.
(C) The information in the
Prospectus under "Description of the Certificates"
and "The Agreements" and the information in the
Prospectus Supplement under "Description of the
Agreement" and "Description of The Certificates,"
insofar as they constitute summaries of certain
provisions of the Certificates, the Pooling and
Servicing Agreement, the Insurance Agreement and the
MBIA Policies, summarizes fairly such provisions.
(D) The information in the
Prospectus under "Summary of Terms -- Federal Income
Tax Consequences," "Summary of Terms -- ERISA
Considerations," "Certain Legal Aspects of the
Mortgage Loans," "Federal Income Tax Consequences,"
"ERISA Considerations" and "Risk Factors -- The
Status of the Mortgage Loans in the Event of
Bankruptcy of The Representative or an Originator"
and in the Prospectus Supplement under "Summary of
Terms -- REMIC Election and Tax Status," "Summary of
Terms -- ERISA Considerations," "Federal Income Tax
Consequences," and "ERISA Considerations," to the
extent that they constitute matters of federal, New
York or California law, summaries of legal matters,
documents or proceedings or legal conclusions, has
been reviewed by them and is correct in all material
respects.
(E) TMS Special Holdings, Inc. has
been duly incorporated and is validly existing
and in good standing under the laws of the
State of Delaware. TMS Mortgage Inc. is
qualified to transact business as a foreign
corporation in, and is in good standing under
the laws of, the States of California, Florida
and New York.
(F) Assuming due authorization,
execution and delivery by the other parties thereto
(including but not limited to the Originators), the
Pooling and Servicing Agreement, the Certificates,
the Insurance Agreement, the Indemnification
Agreement, the Pricing Agreement and this Agreement
are legal, valid and binding agreements enforceable
in accordance with their respective terms against the
Company, subject (a) to the effect of bankruptcy,
insolvency, reorganization, moratorium and similar
laws relating to or affecting creditors' rights
generally and court decisions with respect thereto,
(b) to the understanding that no opinion is expressed
as to the application of equitable principles in any
proceeding, whether at law or in equity, and (c) to
limitations of public policy under applicable
securities laws as to rights of indemnity and
contribution thereunder.
(G) No consent, approval,
authorization or order of any court or governmental
agency or body is required for the execution,
delivery and performance by the Company of, or
compliance by the Company with, this Agreement, the
Pooling and Servicing Agreement, the Insurance
Agreement, the Pricing Agreement and the
Indemnification Agreement or the offer, issuance,
sale or delivery of the Certificates, or the
consummation of any other transactions by the Company
contemplated by this Agreement, the Insurance
Agreement, the Pooling and Servicing Agreement, the
Pricing Agreement and the Indemnification Agreement,
except as may be required under the blue sky laws of
any jurisdiction (as to which such counsel need not
opine) and such other approvals as have been
obtained.
(H) Neither the consummation of the
transactions contemplated by, nor the
fulfillment of the terms of, this Agreement, the
Pooling and Servicing Agreement, the Insurance
Agreement, the Pricing Agreement, the Indemnification
Agreement and the Certificates, conflicts or will
conflict with or results or will result in a breach
of or constitutes or will constitute a default under
(a) the terms of any material indenture or other
material agreement or instrument of which counsel has
knowledge to which the Company is a party or by which
it is bound or to which it is subject or (b) any
statute or order, rule, regulation, writ, injunction
or decree of which counsel has knowledge of any
court, governmental authority or regulatory body to
which the Company is subject or by which it is bound.
(I) The delivery of each Mortgage
Note and Mortgage by an Originator as and in the
manner contemplated by the Underwriting Agreement and
the Pooling and Servicing Agreement is sufficient
fully to transfer to the Trustee (or, with respect to
the Pool III Home Improvement Loans, the Co-Trustee)
for the benefit of the Certificateholders all right,
title and interest of the applicable Originator in
and to each such Loan including, without limitation,
the right to enforce each such Loan in accordance
with its terms to the extent enforceable by the
related Originator at the time of such delivery. With
respect to the transfer of the Loans by the
Originators, such counsel shall express no opinion as
to (i) whether the laws of the State of New York
would apply to the transfer of the related Mortgages
or (ii) the effectiveness of the transfer of the
Mortgages under the laws of the jurisdictions in
which such Originators are located (other than
Mortgages relating to Mortgaged Properties situated
in California, Florida or New York) or in which the
Mortgaged Properties are situated (other than
Mortgaged Properties situated in California, Florida
or New York) or the right of the Trustee and the
Co-Trustee to enforce such Mortgages.
(J) The Certificates, assuming due
execution by the Company, due authorization by the
Trustee and delivery and payment therefore pursuant
to the Underwriting Agreement, will be validly issued
and outstanding and entitled to the benefits of the
Pooling and Servicing Agreement.
(K) Assuming compliance with all
provisions of the Pooling and Servicing Agreement,
for federal income tax purposes, the REMIC Trust Fund
will qualify as a REMIC and the Class A Certificates
and Class R Certificates offered with respect thereto
will be considered to evidence ownership of "regular
interests" or "residual interests," respectively, in
the REMIC Trust Fund within the meaning of the REMIC
Provisions. Assuming compliance with all provisions
of the Pooling and Servicing Agreement, for New York
State and City tax purposes, the REMIC Trust Fund
will be classified as a REMIC and not as a
corporation, partnership or trust, in conformity with
the federal income tax treatment of such assets.
Accordingly, the REMIC will be exempt from all New
York State and City taxation imposed upon its income,
franchise or capital stock. Additionally, the REMIC
will be exempt from all State of California taxation
imposed upon its income, franchise or capital stock,
other than the application of the annual minimum tax
under Section 23153 of the California Revenue and
Taxation Code.
(L) A Class A Certificate owned by a
"domestic building and loan association" within the
meaning of Section 7701(a)(19) of the Code will be
considered in its entirety to represent an interest
in qualified assets within the meaning of Section
7701(a)(19)(C)(xi) of the Code so long as at least
95% of the REMIC Trust Fund's assets consist of
assets described in Section 7701(a)(19)(C)(i) through
(x) of the Code. If less than 95% of the REMIC Trust
Fund's assets consist of such items, a Class A
Certificate will be considered qualified assets in
the same proportion as the REMIC Trust Fund's assets
which are such items. A Class A Certificate owned by
a real estate investment trust will be considered in
its entirety an interest in "real estate assets"
within the meaning of Section 856(c)(5)(A) of the
Code and interest thereon will be considered in its
entirety "interest on obligations secured by
mortgages on real property" within the meaning of
Section 856(c)(3)(B) of the Code in both cases so
long as at least 95% of the REMIC Trust Fund's assets
are "real estate assets" as defined in Section
856(c)(3)(B) of the Code. If less than 95% of the
REMIC Trust Fund's assets are "real estate assets," a
Class A Certificate will be considered "real estate
assets" and the interest thereon will be considered
"interest on obligations secured by mortgages on real
property" in the same proportion as the REMIC Trust
Fund's assets which are "real estate assets." A Class
A Certificate will not be considered "residential
loans" for purposes of the residential loan
requirement of Section 593(g)(4)(B) of the Code. A
Class A Certificate held by another REMIC will be a
"qualified mortgage" within the meaning of Section
860G(a)(3) of the Code, assuming it is transferred to
the REMIC on its startup day in exchange for regular
or residual interests in such REMIC.
(M) The Pooling and Servicing
Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended. The Trust
Fund created by the Pooling and Servicing Agreement
is not required to be registered under the Investment
Company Act of 1940, as amended.
In rendering such opinion, Stroock & Stroock
& ▇▇▇▇▇ may rely on certificates of responsible officers of
the Company, the Trustee, the Co-Trustee, and public officials
or, as to matters of law other than New York, Florida,
California or Federal law, on opinions of other counsel
(copies of which opinions shall be delivered to you and upon
which you may rely).
(ii) The favorable opinion, dated as of Closing
Time, of counsel for the Company and the Originators, in form
and substance satisfactory to counsel for the Underwriters, to
the effect that:
(A) The Company has been duly
organized and is validly existing and is in good
standing under the laws of the State of New Jersey.
Each Originator has been duly organized under the
laws of its jurisdiction of incorporation and is
qualified to transact business in the laws of the
states in which the Mortgaged Properties underlying
the Loans originated by each such Originator are
located or is otherwise exempt under applicable law
from such qualification. TMS Special Holdings, Inc.
has been duly organized and is validly existing and
in good standing under the laws of the State of
Delaware.
(B) The Company and each of the
Originators have the power to engage in the
transactions contemplated by this Agreement, the
Pooling and Servicing Agreement, the Insurance
Agreement and, in the case of the Company, the
Pricing Agreement, the Indemnification Agreement, the
Auction Agent Agreement and the Certificates, and
have all requisite power, authority and legal right
to execute and deliver this Agreement, the Pooling
and Servicing Agreement, the Insurance Agreement,
and, in the case of the Company, the Pricing
Agreement, the Indemnification Agreement, the Auction
Agent Agreement and the Certificates (and any other
documents delivered in connection therewith) and to
perform and observe the terms and conditions of such
instruments.
(C) This Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement, the
Pricing Agreement, the Indemnification Agreement, and
the Certificates each have been duly authorized,
executed and delivered by the Company; this
Agreement, the Pooling and Servicing Agreement and
the Insurance Agreement each have been duly
authorized, executed and delivered by each Originator
and, assuming due authorization, execution and
delivery by the other parties thereto, are legal,
valid and binding agreements of the Company and each
Originator, as the case may be, and assuming such
agreements were governed by the laws of the State of
New Jersey, would be enforceable in
accordance with their respective terms against
the Company and each Originator, as the case
may be, subject (a) to the effect of bankruptcy,
insolvency, reorganization, moratorium and similar
laws relating to or affecting creditors' rights
generally and court decisions with respect thereto,
(b) to the understanding that no opinion is expressed
as to the application of equitable principles in any
proceeding, whether at law or in equity, and (c) to
limitations of public policy under applicable
securities laws as to rights of indemnity and
contribution thereunder.
(D) Neither the transfer of the
Loans to the Trust Fund, the consummation of the
transactions contemplated by, nor the fulfillment of
the terms of, this Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement, or in
the case of the Company, the Pricing Agreement, the
Indemnification Agreement and the Certificates, (A)
conflicts or will conflict with or results or will
result in a breach of or constitutes or will
constitute a default under the Certificates of
Incorporation or Bylaws of the Company or any
Originator, or the terms of any material indenture or
other material agreement or instrument of which such
counsel has knowledge to which the Company or any
Originator are a party or by which it is bound or to
which it is subject, or (B) results in, or will
result in the creation or imposition of any lien or
encumbrance upon the Trust Fund or upon the related
Certificates, except as otherwise contemplated by the
Pooling and Servicing Agreement, or (C) any statute
or order, rule, regulations, writ, injunction or
decree of any court, governmental authority or
regulatory body to which the Company or any
Originator is subject or to which it is bound.
(E) Except as set forth in the
Prospectus Supplement, there is no action, suit,
proceeding or investigation pending or, to the best
of such counsel's knowledge, threatened against the
Company or any Originator which, in such counsel's
judgment, either in any one instance or in the
aggregate, may result in any material adverse change
in the business, operation, financial condition,
properties or assets of the Company or an Originator
or in any material impairment of the right or ability
of the Company or any Originator to carry on its
business substantially as now conducted or result in
any material liability on the part of the Company or
any Originator or which would draw into question the
validity of this Agreement, the Pricing Agreement,
the Certificates, the Insurance Agreement, the
Indemnification Agreement or the Pooling and
Servicing Agreement or of any action taken or to be
taken in connection with the transactions
contemplated thereby, or which would be likely to
impair materially the ability of the Company or any
Originator to perform under the terms of this
Agreement, the Insurance Agreement or the Pooling and
Servicing Agreement, or in the case of the Company,
the Pricing Agreement, the Indemnification Agreement
or the Certificates.
(F) No consent, approval,
authorization or order of any court or governmental
agency or body is required for the execution,
delivery and performance by the Company and each
Originator of, or compliance by the Company and each
Originator with, this Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement or, in
the case of the Company, the Pricing Agreement, the
Indemnification Agreement or the Certificates, or the
consummation of the transactions contemplated
therein, except such as may be required under the
blue sky laws of any jurisdiction and such other
approvals as have been obtained.
(G) The delivery by TMS Mortgage
Inc. ("TMS") of each Mortgage Note and Mortgage
secured by real property located in New Jersey as and
in the manner contemplated by the Pooling and
Servicing Agreement is sufficient fully to transfer
to the Trustee (or, with respect to the Pool III Home
Improvement Loans, the Co-Trustee) for the benefit of
the Certificateholders all right, title and interest
of TMS in and to each such Loan including, without
limitation, the right to enforce each such Loan in
accordance with its terms to the extent enforceable
by TMS at the time of such delivery.
(iii) The favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇ ▇▇▇▇, counsel for MBIA, in form and substance
satisfactory to counsel for the Underwriters, to the effect
that:
(A) MBIA is a stock insurance
corporation, duly incorporated and validly existing
under the laws of the State of New York. MBIA is
validly licensed and authorized to issue the MBIA
Policies and perform its obligations under the MBIA
Policies in accordance with the terms thereof, under
the laws of the State of New York.
(B) The execution and delivery by
MBIA of the MBIA Policies, the Insurance Agreement
and the Indemnification Agreement are within the
corporate power of MBIA and have been authorized by
all necessary corporate action on the part of MBIA;
the MBIA Policies have been duly executed and is the
valid and binding obligation of MBIA enforceable in
accordance with its terms except that the enforcement
of the MBIA Policies may be limited by laws relating
to bankruptcy, insolvency, reorganization,
moratorium, receivership and other similar laws
affecting creditors' rights generally and by general
principles of equity.
(C) MBIA is authorized to deliver
the Insurance Agreement and the Indemnification
Agreement, and the Insurance Agreement and the
Indemnification Agreement have been duly executed and
are the valid and binding obligations of MBIA
enforceable in accordance with their respective terms
except that the enforcement of the Insurance
Agreement and the Indemnification Agreement may be
limited by laws relating to bankruptcy, insolvency,
reorganization, moratorium, receivership and other
similar laws affecting creditors' rights generally
and by general principles of equity and by public
policy considerations relating to indemnification for
securities law violations.
(D) No consent, approval,
authorization or order of any state or federal court
or govern-mental agency or body is required on the
part of MBIA, the lack of which would adversely
affect the validity or enforceability of the MBIA
Policies; to the extent required by applicable legal
requirements that would adversely affect the validity
or enforceability of the MBIA Policies, the form of
the MBIA Policies has been filed with, and approved
by, all governmental authorities having jurisdiction
over MBIA in connection with such MBIA Policies.
(E) To the extent the MBIA Policies
constitute securities within the meaning of Section
2(l) of the Securities Act of 1933, as amended (the
"Act"), it is a security that is exempt from the
registration requirements of the Act.
(F) The information set forth under
the caption "MBIA Policies and MBIA" in the
Prospectus Supplement, relating to the offer and sale
of the Class A Certificates, to the Prospectus
forming a part of the Registration Statement on Form
S-3 (No. 33-98734) filed by the Company with the
Securities and Exchange Commission and declared
effective on March 19, 1996, insofar as such
statements constitute a description of the MBIA
Policies, accurately summarizes the MBIA Policies.
In rendering this opinion, such counsel may
rely, as to matters of fact, on certificates of responsible
officers of the Company, the Trustee, the Co- Trustee, MBIA
and public officials. Such opinion may assume the due
authorization, execution and delivery of the instruments and
documents referred to
therein by the parties thereto other than the MBIA.
(iv) The favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Trustee, in
form and substance satisfactory to counsel for the
Underwriters.
(v) The favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇ & Whitney, counsel for the Co-Trustee and the
Custodian, in form and substance satisfactory to counsel for
the Underwriters.
(vi) In giving its opinion required by subsection
(b)(i) of this Section, Stroock & Stroock & ▇▇▇▇▇ shall
additionally state that nothing has come to its attention that
has caused it to believe that the Registration Statement, at
the time it became effective, contained an untrue statement of
a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the
Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Representative, as
representative of the Underwriters, by the Company for use in
connection with the offering of the Class A Certificates which
differs from the Prospectus on file at the Commission at the
Representation Date, in which case at the time it is first
provided to the Representative, as representative of the
Underwriters, for such use) or at Closing Time, included an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading (other than the financial,
numerical, statistical and quantitative information contained
therein, the information under the heading "The MBIA Policies
and MBIA" therein, and the information in the Exhibits
thereto, as to which such counsel need express no view).
(c) At Closing Time, the Representative, as
representative of the Underwriters, shall have received from Stroock &
Stroock & ▇▇▇▇▇, counsel for the Underwriters, a letter, dated as of
Closing Time, authorizing the Representative, as representative of the
Underwriters, to rely upon each opinion delivered by Stroock & Stroock
& ▇▇▇▇▇ to each of ▇▇▇▇▇'▇ and Standard & Poor's in connection with the
issuance of the Certificates as though each such opinion was addressed
to the Representative, as representative of the Underwriters, and
attaching a copy of each such opinion.
(d) At Closing Time there shall not have been, since
the date hereof or since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and the
Originators and their subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Underwriter shall have received a certificate signed by one or more
duly authorized officers of the Company and the Originators, dated as
of Closing Time, to the effect that (i) there has been no such material
adverse change; (ii) the representations and warranties in Section 1(a)
hereof are true and correct in all material respects with the same
force and effect as though expressly made at and as of Closing Time;
(iii) the Company and the Originators have complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
at or prior to Closing Time; and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission.
(e) At or before the time of printing of the
Prospectus Supplement, the Representative, as representative of the
Underwriters, shall have received from KPMG Peat Marwick a letter dated
as of Closing Time and in form and substance satisfactory to the
Representative, as representative of the Underwriters, to the effect
that they have carried out certain specified procedures, not
constituting an audit, with respect to (i) certain amounts, percentages
and financial information relating to the Company's servicing portfolio
which are included in the Prospectus and which are specified by the
Representative, as representative of the Underwriters, and have found
such amounts, percentages and financial information to be in agreement
with the relevant accounting, financial and other records of the
Company and the Originators identified in such letter, (ii) the
information contained in the weighted average life tables contained in
the Prospectus under the caption "Maturity, Prepayment and Yield
Considerations" and have found such information to be in agreement with
the corresponding information as computed by KPMG Peat Marwick and
(iii) certain information regarding the Loans and the Files which are
specified by the Representative, as representative of the Underwriters,
and contained in the Current Report on Form 8-K described in Section
5(l) hereof and setting forth the results of such specified procedures.
Notwithstanding the foregoing, if the letter delivered by KPMG Peat
Marwick at Closing Time does not cover the information set forth in subclause
(iii), the Company shall cause KPMG Peat Marwick to deliver to the
Representative, as representative of the Underwriters, an additional letter
covering such information within 5 business days of the Closing Time.
(f) At Closing Time, the Representative, as
representative of the Underwriters, shall have received from each of
the Trustee and the Co-Trustee a certificate signed by one or more duly
authorized officers of the Trustee and the Co-Trustee, respectively,
dated as of Closing Time, as to the due acceptance of the Pooling and
Servicing Agreement by the Trustee and the Co-Trustee, respectively and
the due authentication of the Certificates by the Trustee and the
Co-Trustee, respectively and such other matters as the Representative,
as representative of the Underwriters, shall request.
(g) At Closing Time, the Representative, as
representative of the Underwriters, shall have received a certificate
signed by one or more duly authorized officers of MBIA, dated as of
Closing Time, to the effect that the information contained under the
caption "The MBIA Policies and MBIA" in the Prospectus and in the
Exhibits A and B to the Prospectus is true and accurate in all material
respects and such other matters as the Representative, as
representative of the Underwriters, shall request.
(h) At Closing Time, the Representative, as
representative of the Underwriters, shall have received a certificate
signed by one or more duly authorized officers of the Company and the
Originators, dated as of Closing Time to the effect that:
(i) the representations and warranties of the
Company and the Originators in the Pooling and Servicing
Agreement are true and correct in all material respects at and
on the Closing Date, with the same effect as if made on the
Closing Date;
(ii) the Company and the Originators have
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied in
connection with the sale and delivery of the Certificates;
(iii) all statements and information contained in
the Prospectus Supplement under the captions "The
Representative and the Originators" and "The Loans" and in the
Prospectus under the captions "The Representative and the
Originators" and "Lending Programs" are true and accurate in
all material respects and nothing has come to such officer's
attention that would lead him to believe that any of the
specified sections contains any untrue statement of a material
fact or omits to state any material fact necessary in order to
make the statements and information therein, in the light of
the circumstances under which they were made, not misleading;
(iv) the information set forth in the Schedule of
Loans required to be furnished pursuant to the Pooling and
Servicing Agreement is true and correct in all material
respects and the Loans actually being delivered to the Trustee
and the Co-Trustee at Closing Time conform in all material
respects to the Pool information set forth in the Prospectus
Supplement;
(v) the copies of the Charter and By-laws of the
Company and the Originators attached to such certificate are
true and correct and, are in full force and effect on the date
thereof;
(vi) except as may otherwise be disclosed in the
Prospectus, there are no actions, suits or proceedings pending
(nor, to the best knowledge of such officers, are any actions,
suits or proceedings threatened), against or affecting the
Company or any Originator which if adversely determined,
individually or in the aggregate, would adversely affect the
Company's or such Originator's obligations under the Pooling
and Servicing Agreement, the Indemnification Agreement, the
Insurance Agreement, the Pricing Agreement or this Agreement;
(vii) each person who, as an officer or
representative of the Company or of any Originator, signed (a)
this Agreement, (b) the Pooling and Servicing Agreement, (c)
the Certificates issued thereunder, (d) the Insurance
Agreement, (e) the Indemnification Agreement or (f) any other
document delivered prior hereto or on the date hereof in
connection with the purchase described in this Agreement and
the Pooling and Servicing Agreement, was, at the respective
times of such signing and delivery, and is now duly elected or
appointed, qualified and acting as such officer or
representative;
(viii) a certified true copy of the resolutions
of the board of directors of the Company and the Originators
with respect to the sale of the Class A Certificates subject
to this Agreement and the Pooling and Servicing Agreement,
which resolutions have not been amended and remain in full
force and effect;
(ix) all payments received with respect to the
Loans after the Cut-Off Date have been deposited in the
Principal and Interest Account, and are, as of the Closing
Date, in the Principal and Interest Account;
(x) the Company has complied, and has ensured
that the Originators have complied, with all the agreements
and satisfied, and has ensured that the Originators have
satisfied, all the conditions on its, and the Originators',
part to be performed or satisfied in connection with the
issuance, sale and delivery of the Loans and the Certificates;
(xi) all statements contained in the Prospectus
with respect to the Company and the Originators are true and
accurate in all material respects and nothing has come to such
officer's attention that would lead such officer to believe
that the Prospectus contains any untrue statement of a
material fact or omits to state any material fact;
(xii) each Mortgage assignment will be prepared
based on forms recently utilized by the Company with respect
to mortgaged properties located in the appropriate
jurisdiction and used in the regular course of the Company's
business. Based on the Company's experience with such matters,
the Company reasonably believes that upon execution each such
assignment will be in recordable form and will be sufficient
to effect the assignment of the Mortgage to which it relates
as provided in the Pooling and Servicing Agreement; and
(xiii) the weighted average lives of the Class
A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6,
Class A-7, Class A-8, Class A-9, Class A-10, Class A-11, Class
A-12, Class A-13, Class A-14, Class A-15 and Class A-16
Certificates, in each case using the applicable pricing speed
and a weighted average coupon (or, in the case of the Pool II
Home Equity Loans, the weighted average margin) and weighted
average maturity based upon the Loans actually delivered to
the Trustee and the Co-Trustee, will not vary by more than
1/10th of one year from 0.5 years, 1.2 years, 2.1 years, 3.1
years, 4.1 years, 5.3 years, 7.4 years, 11.9 years, 7.0 years,
3.5 years, 1.1 years, 3.1 years, 5.1 years, 7.4 years, 11.9
and 6.9 years, respectively.
(i) At Closing Time, each Class of the Class A
Certificates shall have been rated "Aaa" by ▇▇▇▇▇'▇ and "AAA" by
Standard & Poor's.
(j) At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and delivery of the Class A Certificates as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Class A Certificates as herein contemplated shall be
satisfactory in form and substance to the Representative, as
representative to the Underwriters, and counsel for the Underwriters.
(k) On or before the Closing Time the Company and the
Originators shall have delivered to the Trustee (or, with respect to
the Pool III Home Improvement Loans, the Co-Trustee), to hold in trust
for the benefit of the holders of the Certificates, Pool I and Pool II
Home Equity Loans, Pool III Home Improvement Loans and Pool IV
Multifamily Loans (as defined in the Prospectus) with aggregate
outstanding principal balances as of the Cut-Off Date of at least
$375,000,000, $273,000,000, $120,000,000 and $9,900,000, respectively.
The Company and the Originators shall, immediately following the sale
of the Class A Certificates, cause to be deposited with the Trustee,
for deposit in the Pre- Funding Account (as defined in the Prospectus
Supplement), cash in an amount equal to the sum of (A) the excess of
(i) the aggregate initial principal balance of the Class A-1, Class
A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class A-8
and Class A- 9 Certificates (I.E., $500,000,000) over (ii) the
aggregate discounted outstanding principal balances as of the Cut-Off
Date of the Pool I Home Equity Loans actually delivered to the Trustee,
(B) the excess of (i) the aggregate initial principal balance of the
Class A-10 Certificates (I.E., $350,000,000) over (ii) the aggregate
outstanding principal balances as of the Cut-Off Date of the Pool II
Home Equity Loans actually delivered to the Trustee, (C) the excess of
(i) the aggregate initial principal balance of the Class A-11, Class
A-12, Class A-13, Class A-14 and Class A-15 Certificates (I.E.,
$175,000,000) over (ii) the aggregate discounted outstanding principal
balances as of the Cut-Off Date of the Pool III Home Improvement Loans
actually delivered to the Trustee and the Co-Trustee, and (D) the
excess of (i) the aggregate initial principal balance of the Class A-16
Certificates (I.E., $10,000,000) over (ii) the aggregate outstanding
principal balances as of the Cut-Off Date of the Pool IV Multifamily
Loans actually delivered to the Trustee.
(l) On or before the Closing Time the Company shall
have delivered to the Representative a Current Report on Form 8-K
containing a detailed description of the Loans actually being delivered
to the Trustee and the Co-Trustee at Closing Time, in form and
substance satisfactory to the Representative.
(m) On or before the Closing Time the Company shall
have delivered to the Representative confirmation from the Federal
Housing Administration (the "FHA") that the FHA insurance reserves
relating to the FHA Loans have been or will be transferred to the
Co-Trustee.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representative, as
representative to the Underwriters, by notice to the Company at any
time at or prior to Closing time, and such termination shall be without
liability of any party to any other party except as provided in Section
4 hereof.
Section 6. INDEMNIFICATION.
(a) The Company and the Originators jointly and severally
agree to indemnify and hold harmless each of the Underwriters and each person,
if any, who controls each of the Underwriters within the meaning of Section 15
of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any untrue statement or omission
described in clause (i) above, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the reasonable fees and
disbursements of counsel chosen by such Underwriter), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any untrue statement or omission described in clause (i) above, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with the information referred to in clauses (x), (y) and
(z) of the immediately following paragraph; provided, further, such indemnity
with respect to the Prospectus or any preliminary prospectus shall not inure to
the benefit of any Underwriter (or person controlling such Underwriter) from
whom the person suffering any such loss, claim, damage or liability purchased
the Class A Certificates which are the subject thereof if such person did not
receive a copy of the Prospectus at or prior to the confirmation of the sale of
such Class A Certificates to such person in any case where such delivery is
required by the 1933 Act and the untrue statement or omission of a material fact
contained in any preliminary prospectus was corrected in the Prospectus.
(b) Each Underwriter agrees to indemnify and hold harmless the
Company and the Originators, their directors, each of the Company's and
Originator's officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, contained in (x) the second sentence of the
third paragraph on the third page which is located on the inside cover
(discussing the risk of a lack of secondary trading) of the Prospectus, (y) the
second and third paragraphs under the heading "Underwriting" in the Prospectus
(or any amendment or supplement thereto) and (z) any Computational Materials
prepared by such Underwriter, except to the extent of any errors in the
Computational Materials that are caused by errors in the pool information
provided by the Company to the applicable Underwriter. The parties hereto agree
that no Underwriter shall be under any liability to the Company, the Originators
or any other person identified in this paragraph (b) for Computational Materials
prepared by any other Underwriter.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve the indemnifying party from any liability that it may have to any
indemnified party except to the extent that it has been prejudiced in any
material respect by such failure or from any liability that it may have
otherwise than under this Section 6. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided, however, that, if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party for any legal or other expenses other than the reasonable
costs of investigation subsequently incurred in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence, (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such liability shall be only
in respect of the counsel referred to in such clause (i) or (iii). After such
notice from the indemnifying party to such indemnified party, the indemnifying
party will not be liable for the costs and expenses of any settlement of such
action effected by such indemnified party without the consent of the
indemnifying party.
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Originators jointly and severally, on the one hand, and the Underwriters, on the
other hand, shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Originators jointly and severally, on the one
hand, and the Underwriters, on the other hand, as incurred, in such proportions
that each Underwriter is responsible for that portion represented by the
underwriting discount allocated to the principal amount of Class A Certificates
set forth next to each Underwriter's name on Annex B hereto (or, with respect to
Computational Materials furnished by an Underwriter (except to the extent of any
errors in the Computational Materials that are caused by errors in the pool
information provided by the Company to the applicable Underwriter), the excess
of the principal amount of Class A Certificates set forth next to such
Underwriter's name on Annex B hereto over the underwriting discount allocated to
such principal amount of Class A Certificates), and the Company and the
Originators shall be responsible for the balance; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. Notwithstanding the provisions
of this Section 7, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Class A Certificates
set forth next to the name of such Underwriter on Annex B hereto were offered to
the public exceeds the amount of any damages such Underwriter has otherwise been
required to pay in respect of such losses, liabilities, claims, damages and
expenses. For purposes of this Section 7, each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Underwriter and each respective director of the
Company and the Originators, each officer of the Company and the Originators who
signed the Registration Statement, and each respective person, if any, who
controls the Company and the Originators within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company and the
Originators.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers of
the Company and the Originators submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any of the Underwriters or any controlling person thereof, or by
or on behalf of the Company and the Originators, and shall survive delivery of
the Class A Certificates to the Underwriter.
Section 9. TERMINATION OF AGREEMENT.
(a) The Representative, as representative of the Underwriters, may
terminate this Agreement, by notice to the Company and the Originators, at any
time at or prior to Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Registration Statement or Prospectus, any change, or
any development involving a prospective change, in or affecting particularly the
business or properties of the Company and the Originators considered as one
entity or MBIA which, in the reasonable judgment of the Representative, as
representative of the Underwriters, materially impairs the investment quality of
the Class A Certificates; (ii) if there has occurred any downgrading in the
rating of the debt securities of MBIA by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the ▇▇▇▇ ▇▇▇)
which, in the reasonable judgment of the Representative, as representative of
the Underwriters, materially impairs the investment quality or marketability of
the Class A Certificates or if any debt security of MBIA has been put on the
"watch list" of any such rating organization with negative implications; (iii)
if there has occurred any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange or by any governmental authority; (iv) if any banking
moratorium has been declared by Federal or New York authorities; or (v) if there
has occurred any outbreak or escalation of major hostilities in which the United
States of America is involved, any declaration of war by Congress, or any other
substantial national or international calamity or emergency if, in the judgment
of the Representative, as representative of the Underwriter, the effects of any
such outbreak, escalation, declaration, calamity, or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and payment
for the Class A Certificates.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof.
Section 10. DEFAULT BY ONE OF THE UNDERWRITERS. If any of the
Underwriters shall fail at Closing Time to purchase the Class A Certificates
which it is obligated to purchase hereunder (the "Defaulted Certificates"), the
remaining Underwriters (the "Non-Defaulting Underwriters") shall have the right,
but not the obligation, within one (1) Business Day thereafter, to make
arrangements to purchase all, but not less than all, of the Defaulted
Certificates upon the terms herein set forth; if, however, the Non-Defaulting
Underwriters shall have not completed such arrangements within such one (1)
Business Day period, then this Agreement shall terminate without liability on
the part of the Non-Defaulting Underwriters.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Non-Defaulting Underwriters or the
Company shall have the right to postpone Closing Time for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements.
Section 11. COMPUTATIONAL MATERIALS. (a) It is understood that any
Underwriter may prepare and provide to prospective investors certain
Computational Materials (as defined below) in connection with the Company's
offering of the Class A Certificates, subject to the following conditions:
(i) Each Underwriter shall comply with all applicable laws and
regulations in connection with the use of Computational Materials including the
No-Action Letter of May 20, 1994 issued by the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co. Incorporated and ▇▇▇▇▇▇
Structured Asset Corporation, as made applicable to other issuers and
underwriters by the Commission in response to the request of the Public
Securities Association dated May 24, 1994, and the No-Action Letter of February
17, 1995 issued by the Commission to the Public Securities Association
(collectively, the "▇▇▇▇▇▇/PSA Letters").
(ii) As used herein, "Computational Materials" and the term "ABS
Term Sheets" shall have the meanings given such terms in the ▇▇▇▇▇▇/PSA Letters,
but shall include only those Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of an Underwriter.
(iii) Each Underwriter shall provide the Company with representative
forms of all Computational Materials prior to their first use, to the extent
such forms have not previously been approved by the Company for use by such
Underwriter. The Underwriter shall provide to the Company, for filing on Form
8-K as provided in Section 11(b), copies of all Computational Materials that are
to be filed with the Commission pursuant to the ▇▇▇▇▇▇/PSA Letters. The
Underwriter may provide copies of the foregoing in a consolidated or aggregated
form. All Computational Materials described in this subsection (a)(iii) must be
provided to the Company not later than 10:00 a.m. New York time one business day
before filing thereof is required pursuant to the terms of this Agreement.
(iv) If an Underwriter does not provide any Computational Materials
to the Company pursuant to subsection (a)(iii) above, such Underwriter shall be
deemed to have represented, as of the Closing Date, that it did not provide any
prospective investors with any information in written or electronic form in
connection with the offering of the Certificates that is required to be filed
with the Commission in accordance with the ▇▇▇▇▇▇/PSA Letters.
(v) In the event of any delay in the delivery by any
Underwriter to the Company of all Computational Materials required to be
delivered in accordance with subsection (a)(iii)
above, the Company shall have the right to delay the release of the Prospectus
to investors or to any Underwriter, to delay the Closing Date and to take other
appropriate actions in each case as necessary in order to allow the Company to
comply with its agreement set forth in Section 11(b) to file the Computational
Materials by the time specified therein.
(b) The Company shall file the Computational Materials (if
any) provided to it by each Underwriter under Section 11(a)(iii) with the
Commission pursuant to a Current Report on Form 8-K no later than 10:00 a.m. on
the date required pursuant to the ▇▇▇▇▇▇/PSA Letters.
Section 12. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to ▇▇▇▇▇▇ Brothers, as representative of the
Underwriters, Three World Financial Center, New York, New York 10285- 1200,
Attention: Syndicate Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇); and notices to the Company
or any Originator shall be directed to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Executive Vice President.
Section 13. PARTIES. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Underwriters, the Company,
the Originators and their respective successors. Nothing expressed or mentioned
in this Agreement or the Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters, the Company,
the Originators and their respective successors and the controlling persons and
officers and directors referred to in Section 6 and 7 hereof and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
with respect to this Agreement or the Pricing Agreement or any provision herein
or therein contained. This Agreement and the Pricing Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company, the Originators and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Class A Certificates from the
Underwriter shall be deemed to be a successor by reason merely of such purchase.
The Company and the Originators shall be jointly and severally liable for all
obligations incurred under this Agreement and the Pricing Agreement.
Section 14. GOVERNING LAW AND TIME. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Unless otherwise set forth herein, specified times of day refer to New
York time.
Section 15. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among each of the Underwriters and the Company in accordance with its terms.
Very truly yours,
THE MONEY STORE INC.
By:________________________________
Name: ▇▇▇▇▇▇ Dear
Title: Executive Vice President
THE ORIGINATORS LISTED ON
ANNEX A HERETO
By:________________________________
Name: ▇▇▇▇▇▇ Dear
Title: Executive Vice President
CONFIRMED AND ACCEPTED, as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
By:________________________
Name:
Title:
Acting on behalf of itself
and as the representative of
the Underwriters.
ANNEX A
The Money Store/Minnesota Inc.
The Money Store/D.C. Inc.
The Money Store/Kentucky Inc.
The Money Store Home Equity Corp.
TMS Mortgage Inc.
ANNEX B
Prudential Bear,
▇▇▇▇▇▇ Securities ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Total
BROTHERS INCORPORATED & CO. INC. BROTHERS ▇▇▇▇▇ & CO.
INC. INC.
Class A-1 25,198,000 17,902,000 9,945,000 9,945,000 3,315,000 66,305,000
Class A-2 32,827,000 23,323,000 12,957,000 12,957,000 4,319,000 86,383,000
Class A-3 36,659,000 26,046,000 14,470,000 14,470,000 4,823,000 96,468,000
Class A-4 20,465,000 14,539,000 8,077,000 8,077,000 2,692,000 53,850,000
Class A-5 18,210,000 12,937,000 7,187,000 7,187,000 2,395,000 47,916,000
Class A-6 13,850,000 9,839,000 5,466,000 5,466,000 1,822,000 36,443,000
Class A-7 17,028,000 12,097,000 6,721,000 6,721,000 2,240,000 44,807,000
Class A-8 10,576,000 7,513,000 4,174,000 4,174,000 1,391,000 27,828,000
Class A-9 15,200,000 10,800,000 6,000,000 6,000,000 2,000,000 40,000,000
Class A-10 133,000,000 94,500,000 52,500,000 52,500,000 17,500,000 350,000,000
Class A-11 29,411,000 20,895,000 11,608,000 11,608,000 3,869,000 77,391,000
Class A-12 13,146,000 9,339,000 5,188,000 5,188,000 1,729,000 34,590,000
Class A-13 10,522,000 7,474,000 4,152,000 4,152,000 1,384,000 27,684,000
Class A-14 6,047,000 4,295,000 2,386,000 2,386,000 795,000 15,909,000
Class A-15 7,384,000 5,245,000 2,913,000 2,913,000 971,000 19,426,000
Class A-16 3,800,000 2,700,000 1,500,000 1,500,000 500,000 10,000,000
====================================================================================================================
Total $ 393,323,000 $ 279,444,000 $155,244,000 $155,244,000 $51,745,000 1,035,000,000
====================================================================================================================