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EXHIBIT 1.1
EXECUTION COPY
AAMES CAPITAL CORPORATION
AND
THE UNDERWRITERS
UNDERWRITING AGREEMENT
FOR
AAMES MORTGAGE TRUSTS
MORTGAGE PASS-THROUGH CERTIFICATES,
ISSUABLE IN SERIES
JUNE 18, 1997
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June 18, 1997
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
as Representative of the several Underwriters
named in Schedule I to the Pricing Agreement
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Aames Capital Corporation (the "Company") proposes, from time to time,
to enter into one or more pricing agreements (each a "Pricing Agreement") in
the form of Annex A hereto, with such additions and deletions as the parties
thereto may determine, and, subject to the terms and conditions stated herein
and therein, to issue in series (each a "Series") and to sell to the
Underwriters (as hereinafter defined), mortgage pass-through certificates, each
Series of which is to be issued pursuant to an applicable pooling and servicing
agreement (a "Pooling and Servicing Agreement") to be dated as of the
applicable Cut-off Date (as defined in the Pricing Agreement), between the
Company, as seller and servicer, and Bankers Trust Company of California, N.A.,
as trustee (the "Trustee"). Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, will act as underwriter and as Representative (in such capacity,
the "Representative") of the several underwriters named in Schedule I hereto
(the "Underwriters"). Each Series of Certificates (as defined below) will
evidence an undivided beneficial ownership interest in a separate Trust (as
defined in the related Pooling and Servicing Agreement) consisting primarily of
a pool (the "Pool") of mortgage loans (the "Mortgage Loans") listed in an
attachment to such Pooling and Servicing Agreement. The Certificates will be
issued in one or more classes (each a "Class"), which may be divided into one
or more subclasses (each a "Subclass"). Any rights of holders of Certificates
of a particular Class or Subclass to receive certain distributions with respect
to the Mortgage Loans that are senior to such rights of holders of Certificates
of any other Class or Subclass of the same Series shall be specified in the
Pricing Agreement. The Certificates of a Series to be purchased pursuant to a
Pricing Agreement will be described more fully in the base Prospectus and the
related Prospectus Supplement (each of which terms is defined below) which the
Company will furnish to the Underwriters.
As used herein, the term "Execution Time" shall mean the date and time
that the Pricing Agreement is executed and delivered by the parties thereto;
the term "Agreement," "this Agreement" and terms of similar import shall mean
this Underwriting Agreement including the Pricing Agreement; and the term
"Closing Date" shall mean the Closing Date specified in the Pricing Agreement.
All capitalized terms used but not otherwise defined herein have the
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respective meanings set forth in the form of Pooling and Servicing Agreement
heretofore delivered to the Representative.
1. Securities. Unless otherwise specified in the Pricing
Agreement, the Certificates of each Series will be issued in classes as
follows: (i) a senior class (which may include two or more subclasses) with
respect to each Mortgage Loan Group (collectively, the "Class A Certificates"),
(ii) a mezzanine class (which may include two or more subclasses) with respect
to each Mortgage Loan Group (collectively, the "Class M Certificates"), (iii) a
subordinate class (which may include two or more subclasses) with respect to
each Mortgage Loan Group (collectively, the "Class B Certificates"), (iv) the
Class C Certificates (the "Class C Certificates") and (v) a residual class with
respect to each Mortgage Loan Group (the "Class R Certificates). The Class A
Certificates, the Class M Certificates and the Class B Certificates specified
in the Pricing Agreement are hereinafter referred to as the "Offered
Certificates." The Offered Certificates, the Class C Certificates and the
Class R Certificates specified in the Pricing Agreement are hereinafter
referred to as the "Certificates."
2. Representations and Warranties of the Company. The Company
represents and warrants to, and covenants with, each Underwriter that:
A. A registration statement on Form S-3 (Registration
No. 333-21219), including a prospectus and a form of prospectus
supplement that contemplates the offering of mortgage pass-through
certificates from time to time, has been filed by the Company and
Aames Capital Acceptance Corp. ("ACAC") with the Securities and
Exchange Commission (the "Commission"), pursuant to the Securities
Act of 1933, as amended and the rules and regulations of the
Commission thereunder (collectively, the "1933 Act"), and as amended
from time to time by one or more amendments, including post-effective
amendments, has been declared effective by the Commission prior to
the date of the Pricing Agreement. The Company will cause to be
filed with the Commission, after effectiveness of such registration
statement (and any such post-effective amendments), a final
prospectus in accordance with Rules 415 and 424(b)(2) under the 1933
Act, relating to the Offered Certificates.
As used herein, the term "Effective Date" shall mean
the date that the Registration Statement (including the most recently
filed post-effective amendment, if any) became effective.
"Registration Statement" shall mean the registration statement
referred to in the preceding paragraph, including the exhibits
thereto and any documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act specifically relating to
the terms of the Offered Certificates or the Pool and filed with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), except that if the Registration
Statement is amended by the filing with the Commission of a
post-effective amendment thereto, the term "Registration Statement"
shall mean collectively the Registration Statement, as amended by the
most
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recently filed post-effective amendment thereto, in the form in which
it was declared effective by the Commission. The prospectus dated
the date specified in the Pricing Agreement (which if not so
specified shall be the date of such Pricing Agreement), which
constitutes a part of the Registration Statement, together with the
prospectus supplement dated the date specified in the Pricing
Agreement (which if not so specified shall be the date of such
Pricing Agreement) (the "Prospectus Supplement"), relating to the
offering of the Offered Certificates, including any document
incorporated therein by reference pursuant to the Exchange Act, are
hereinafter referred to collectively as the "Prospectus," except that
if the Prospectus is thereafter amended or supplemented pursuant to
Rule 424(b), the term "Prospectus" shall mean the prospectus, as so
amended or supplemented pursuant to Rule 424(b), from and after the
date on which such amended prospectus or supplement is filed with the
Commission. Any preliminary form of the Prospectus Supplement which
has heretofore been filed pursuant to Rule 402(a) or Rule 424 is
hereinafter called a "Preliminary Prospectus Supplement." Any
reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement, the Prospectus or the
Prospectus Supplement shall be deemed to refer to and include the
filing of any document under the Exchange Act after the effective
date of the Registration Statement or the issue date of the
Prospectus or Prospectus or Prospectus Supplement, as the case may
be, incorporated therein by reference.
B. As of the date hereof, and as of the dates when the
Registration Statement became effective, when the Prospectus
Supplement is first filed pursuant to Rule 424(b) under the 1933
Act, when, prior to the Closing Date, any other amendment to the
Registration Statement becomes effective, and when any supplement to
the Prospectus is filed with the Commission, and at the Closing Date,
(i) the Registration Statement, as amended, as of any such time, and
the Prospectus, as amended or supplemented as of any such time,
complied or will comply in all material respects with the applicable
requirements of the 1933 Act, and (ii) the Registration Statement, as
amended as of any such time, did not and will not contain any untrue
statement of a material fact and did not and will not omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading and the Prospectus, as amended
or supplemented as of any such time, did not and will not contain an
untrue statement of a material fact and did not and will not 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 Company makes no
representations or warranties as to the information contained in or
omitted from (i) the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of the Underwriters as set forth in this
Agreement or the Pricing Agreement specifically for use in connection
with the preparation of the Registration Statement or the Prospectus
and (ii) the Form 8-K - Computational Materials (as defined in
Section 5K below) or Form 8-K - ABS Term
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Sheets (as defined in Section 5L below), or in any amendment thereof
or supplement thereto, incorporated by reference in such Registration
Statement or such Prospectus (or any amendment thereof or supplement
thereto).
C. The Company is duly organized, validly existing and
in good standing under the laws of the State of California, has full
power and authority (corporate and other) to own its properties and
conduct its business as now conducted by it, and as described in the
Prospectus, and is duly qualified to do business in each jurisdiction
in which it owns or leases real property (to the extent such
qualification is required by applicable law) or in which the conduct
of its business requires such qualification except where the failure
to be so qualified does not involve (i) a material risk to, or a
material adverse effect on, the business, properties, financial
position, operation or results of operations of the Company or (ii)
any risk whatsoever as to the enforceability of any Mortgage Loan.
D. There are no actions, proceedings or investigations
pending, or, to the knowledge of the Company, threatened, before any
court, governmental agency or body or other tribunal (i) asserting
the invalidity of this Agreement, the Certificates or of the Pooling
and Servicing Agreement, (ii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement or the Pooling and Servicing
Agreement, (iii) which may, individually or in the aggregate,
materially and adversely affect the validity or enforceability of,
this Agreement, the Certificates or the Pooling and Servicing
Agreement, or the performance by the Company of its obligations under
this Agreement or the Pooling and Servicing Agreement or (iv) which
may affect adversely the federal income tax attributes of the Offered
Certificates as described in the Prospectus.
E. The execution and delivery by the Company of this
Agreement and the Pooling and Servicing Agreement, the direction by
the Company to the Trustee to execute, countersign, authenticate and
deliver the Certificates and the transfer and delivery of the
Mortgage Loans to the Trust by the Company are within the corporate
power of the Company and have been, or will be, prior to the Closing
Date duly authorized by all necessary corporate action on the part of
the Company and the execution and delivery of such instruments, the
consummation of the transactions therein contemplated and compliance
with the provisions thereof will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under,
any statute or any agreement or instrument to which the Company or
any of its affiliates is a party or by which it or any of them is
bound or to which any of the property of the Company or any of its
affiliates is subject, the Company's articles of incorporation or
bylaws, or any order, rule or regulation of any court, governmental
agency or body or other tribunal having jurisdiction over the
Company, any of its affiliates or any of its or their properties; and
no consent, approval, authorization or order of, or filing with, any
court
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or governmental agency or body or other tribunal is required for the
consummation of the transactions contemplated by this Agreement or
the Prospectus in connection with the sale of the Certificates by the
Company. Neither the Company nor any of its affiliates is a party
to, bound by or in breach or violation of any indenture or other
agreement or instrument, or subject to or in violation of any
statute, order, rule or regulation of any court, governmental agency
or body or other tribunal having jurisdiction over the Company or any
of its affiliates, which materially and adversely affects, or may in
the future materially and adversely affect, (i) the ability of the
Company to perform its obligations under the Pooling and Servicing
Agreement or this Agreement or (ii) the business, operations, results
of operations, financial position, income, properties or assets of
the Company.
F. This Agreement has been duly and validly authorized,
executed and delivered by the Company. The Pooling and Servicing
Agreement will be duly executed and delivered by the Company and will
constitute the legal, valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforceability
may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors, and (ii)
general principles of equity, whether enforcement is sought in a
proceeding at law or in equity.
G. The Offered Certificates will conform in all material
respects to the description thereof contained in the Prospectus, and
the direction by the Company to the Trustee to execute, countersign,
authenticate and deliver the Certificates will be duly and validly
authorized and, when the Offered Certificates have been duly and
validly executed, authenticated, issued and delivered in accordance
with the Pooling and Servicing Agreement and sold to the Underwriters
as provided herein and the Pricing Agreement, the Offered
Certificates have been validly issued and outstanding and entitled to
the benefits of the Pooling and Servicing Agreement.
H. At the Closing Date, the Mortgage Loans will conform
in all material respects to the description thereof contained in the
Prospectus and the representations and warranties contained in this
Agreement will be true and correct in all material respects. The
representations and warranties set out in the Pooling and Servicing
Agreement are hereby made to the Underwriters as though set out
herein, and at the dates specified in the Pooling and Servicing
Agreement, such representations and warranties were or will be true
and correct in all material respects.
I. The transfer of the Mortgage Loans to the Trust
created by the related Pooling and Servicing Agreement (the "Trust")
at the Closing Date will be treated by the Company for financial
accounting and reporting purposes as a sale of assets and not as a
pledge of assets to secure debt.
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J. The Company possesses all material licenses,
certificates, permits or other authorizations issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now operated by it and as described
in the Prospectus and there are no proceedings, pending or, to the
best knowledge of the Company, threatened, relating to the revocation
or modification of any such license, certificate, permit or other
authorization which singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and
adversely affect the business, operations, results of operations,
financial position, income, property or assets of the Company.
K. Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement and the
Pooling and Servicing Agreement, or the execution and issuance of the
Certificates have been or will be paid at or prior to the Closing
Date.
L. There has not been any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business
or operations of the Company, its parent company or its subsidiaries,
taken as a whole, from the date of the end of the most recent fiscal
quarter of the Company for which financial statements (whether
audited or unaudited) have been made publicly available (the "Date of
Recent Company Financial Statements"), to the date hereof.
M. The Pooling and Servicing Agreement will conform in
all material respects to the description thereof contained in the
Prospectus.
N. The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or
the Prospectus or for any additional information with respect to the
offering of the Offered Certificates, (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose or (iii) any notification with respect to
the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
O. Each assignment of Mortgage required to be prepared
pursuant to the Pooling and Servicing Agreement is 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 it is reasonable to believe that upon execution
each such assignment will be
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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.
P. Neither the Company nor the Trust will be subject to
registration as an "investment company" under the Investment Company
Act of 1940, as amended (the "Investment Company Act"). The Pooling
and Servicing Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended, and the Trust is not
required to be registered.
Q. In connection with the offering of the Certificates
in the State of Florida, the Company hereby certifies that it has
complied with all provisions of Section 5.17.075 of the Florida
Securities and Investor Protection Act.
Any certificate signed by any officer of the Company and delivered to
the Underwriters in connection with the sale of the Offered Certificates to
such Underwriters shall be deemed a representation and warranty as to the
matters covered thereby by the Company to each person to whom the
representations and warranties in this Section 2 are made.
3. Agreements of the Underwriters.
A. The several Underwriters agree with the Company that
upon the execution of the Pricing Agreement and authorization by the
Underwriters of the release of the Offered Certificates of the
related Series, the Underwriters shall offer such Offered
Certificates for sale upon the terms and conditions set forth in the
prospectus as amended or supplemented.
B. Each Underwriter severally represents and agrees
that:
(i) it has not offered or sold and will not offer
or sell, prior to the date six months after
their date of issuance, any Offered
Certificates to persons in the United
Kingdom, except to persons whose activities
involve them in acquiring, holding, managing
or disposing of investments (as principal or
agent) for the purposes of their businesses
or otherwise in circumstances which have not
resulted in and will not result in an offer
to the public in the United Kingdom within
the meaning of the Public Offers of
Securities Regulations 1995;
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(ii) it has complied and will comply with all
applicable provisions of the Financial
Services Act of 1986 with respect to anything
done by it in relation to the Offered
Certificates in, from or otherwise involving
the United Kingdom;
(iii) it has only issued or passed on and will only
issue or pass on to any person in the United
Kingdom any document received by it in
connection with the issuance of the Offered
Certificates only if that person is of a kind
described in Article 11(3) of the Financial
Services Act of 1986 (Investment
Advertisements) (Exceptions) Order 1997, or
such person is one to whom the document can
lawfully be issued or passed on;
(iv) no action has been or will be taken by such
Underwriter that would permit a public
offering of the Offered Certificates or
distribution of the Prospectus or Prospectus
Supplement or any Computational Materials or
any other offering material in relation to
the Offered Certificates in any non-U.S.
jurisdiction where action for that purpose is
required unless the Company has agreed to
such actions and such actions have been
taken; and
(v) it understands that, in connection with the
issuance, offer and sale of the Offered
Certificates and with the distribution of the
Prospectus or Prospectus Supplement or any
Computational Materials or any other offering
material in relation to the Offered
Certificates in, to or from any non-U.S.
jurisdiction, the Company has not taken and
will not take any action, and such
Underwriter will not offer, sell or deliver
any Offered Certificates or distribute the
Prospectus or Prospectus Supplement or any
Computational Materials or any other offering
material relating to the Offered Certificates
in, to or from any non-U.S. jurisdiction
except under circumstances which will result
in compliance with applicable laws and
regulations and which will not impose any
liability, obligation or responsibility on
the Company or the other Underwriters.
4. Purchase, Sale and Delivery of the Offered Certificates. The
Company hereby agrees, subject to the terms and conditions hereof, to sell the
Offered Certificates specified in the Pricing Agreement to the Underwriters,
who, upon the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, hereby agree, severally and not
jointly, to purchase the entire aggregate principal amount of the Offered
Certificates in the amounts set forth in Schedule I to such Pricing Agreement.
At the time of issuance of the Certificates, the Mortgage Loans will be sold by
the Company to the Trust pursuant to the
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Pooling and Servicing Agreement. The Company will be obligated, under the
Pooling and Servicing Agreement, to service the Mortgage Loans either directly
or through subservicers.
The Offered Certificates to be purchased by the Underwriters will be
delivered by the Company to the Underwriters (which delivery shall be made
through the facilities of The Depository Trust Company ("DTC") or Cedel Bank,
societe anonyme or the Euroclear System) against payment of the purchase price
therefor, in an amount equal to the percentage of the aggregate original
principal amount thereof as specified in the Pricing Agreement, plus interest
accrued, if any, at the rate on the aggregate original principal amount thereof
from the date specified in such Pricing Agreement to, but not including, the
Closing Date, by a same day federal funds wire payable to the order of the
Company.
Settlement shall take place at the specified offices of Xxxxxxx &
Xxxxx L.L.P., at 10:00 a.m., New York City time, on the date specified in the
Pricing Agreement, or at such other place and at such other time thereafter
(such time being herein referred to as the "Closing Date"), in each case as the
Underwriters and the Company shall determine. The Offered Certificates will be
prepared in definitive form and in such authorized denominations as the
Underwriters may request, registered in the name of Cede & Co., as nominee of
DTC.
It is a condition to the purchase and sale of each Class of Offered
Certificates that the purchase and sale of each other Class of Offered
Certificates occurs simultaneously.
The Company agrees to have the Offered Certificates available for
inspection and review by the Underwriters in Los Angeles not later than 11:00
a.m. New York City time on the business day prior to the Closing Date.
5. Covenants of the Company. The Company covenants and agrees
with each Underwriter that:
A. The Company will promptly advise the Representative
and counsel to the Underwriters (i) when any amendment to the
Registration Statement relating to the offering of the Offered
Certificates shall have become effective, (ii) of any request by the
Commission for any amendment to the Registration Statement or the
Prospectus or for any additional information to the extent applicable
to the offering of the Offered Certificates, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (iv) or the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Offered Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will not file, and will use its commercially reasonable
efforts to prevent ACAC from filing, any amendment to the
Registration Statement or supplement to the Prospectus after the date
of the Pricing Agreement and prior to the related Closing Date
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for the Offered Certificates unless the Company has furnished the
Representative and counsel to the Underwriters copies of such
amendment or supplement for their review prior to filing and will not
file any such proposed amendment or supplement to which the
Representative reasonably and promptly objects, unless such filing is
required by law. The Company will use its commercially reasonable
efforts to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if issued, to obtain
as soon as possible the withdrawal thereof.
B. If, at any time during the period in which the
Prospectus is required by law to be delivered, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fat or omit to state any
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or
if it shall be necessary to amend or supplement the Prospectus to
comply with the 1933 Act or the rules under the 1933 Act, the Company
will promptly prepare and file with the Commission and shall use its
commercially reasonable efforts to cause ACAC to promptly prepare and
file, subject to Paragraph A of this Section 5, an amendment or
supplement that will correct such statement or omission or an
amendment that will effect such compliance and, if such amendment or
supplement is required to be contained in a post- effective amendment
to the Registration Statement, will use its commercially reasonable
efforts to cause such post-effective amendment of the Registration
Statement to become effective as soon as possible, provided, however,
that the Company will not be required to file any such amendment or
supplement with respect to any Computational Materials or ABS Term
Sheets incorporated by reference in the Prospectus other than any
amendments or supplements of such Computational Materials or ABS Term
Sheets that are furnished to the Company by the Underwriters pursuant
to Section 9A hereof which the Company is required to file in
accordance with Section 5K or 5L.
C. The Company will furnish to the Underwriters, without
charge, copies of the Registration Statement (including exhibits
thereto), any documents incorporated therein by reference, and, so
long as delivery of a prospectus by the Underwriters or a dealer may
be required by the 1933 Act, as many copies of the Prospectus, as
amended or supplemented, and any amendments and supplements thereto
as the Underwriters may reasonably request. The Company will pay the
expenses of printing all offering documents relating to the offering
of the Offered Certificates.
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D. As soon as practicable, but not later than sixteen
months after the effective date of the Registration Statement, the
Company will cause the Trust to make generally available to holders
of Offered Certificates statements of the Trust collectively covering
a period of at least 12 months beginning after the effective date of
the Registration Statement. Such statements will be filed with the
Commission pursuant to the provisions of the Exchange Act.
E. During a period of 20 calendar days from the
Execution Time, neither the Company nor any affiliate of the Company
will, without the Representative's prior written consent (which
consent shall not be unreasonably withheld), enter into any agreement
to offer or sell mortgage pass-through certificates backed by
mortgage loans, except pursuant to this Agreement.
F. So long as any of the Offered Certificates are
outstanding, the Company will cause to be delivered to the
Underwriters, (i) all documents required to be distributed to the
holders of the Offered Certificates, (ii) from time to time, any
other information concerning the Trust filed with any government or
regulatory authority that is otherwise publicly available, as the
Underwriters may reasonably request, (iii) the annual statement as to
compliance delivered to the Trustee pursuant to the Pooling and
Servicing Agreement, (iv) the annual statement of a firm of
independent public accountants furnished to the Trustee pursuant to
the Pooling and Servicing Agreement as soon as such statement is
filed by the Company with the Commission and (v) any information
required to be delivered by the Company or the Servicer pursuant to
Section 4.01 of the form of Pooling and Servicing Agreement
heretofore delivered to the Representative.
G. The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement or the
Pricing Agreement is consummated, will pay all expenses in connection
with the transactions contemplated herein, including but not limited
to (i) the expenses of printing (or otherwise reproducing) all
documents relating to the offering and the fees and disbursements of
its counsel incurred in connection with the issuance and delivery of
the Offered Certificates, (ii) the preparation of all documents
specified in this Agreement, (iii) any fees and expenses of the
Trustee (including legal fees) that are not payable by or from the
Trust, (iv) any accounting fees and disbursements relating to the
offering of Offered Certificates, (v) any fees charged by rating
agencies for rating the Offered Certificates, (vi) any reasonable
fees and disbursements of counsel to the Underwriters relating to
Blue Sky undertakings (vii) any reasonable fees and disbursements of
counsel to the Underwriters in an amount not to exceed $5,000 per
Series relating to the representation of the Underwriters with
respect to the offering of the Offered Certificates of such Series
and (viii) the fees and charges related to the filing with the
Commission of such Current Reports on Form 8-K and such other
materials as are contemplated hereby, whether pursuant to XXXXX or
otherwise.
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Subject to the provisions of Section 7 hereof, the Company will not
pay the fees and expenses of the Underwriters or their counsel except
as specified above.
H. The Company will enter into the Pooling and Servicing
Agreement and all related agreements on or prior to the Closing Date.
I. The Company will endeavor to qualify the Offered
Certificates for sale to the extent necessary under any state
securities or Blue Sky laws in any jurisdiction as may be reasonably
requested by the Underwriters, if any, and will pay all expenses
(including reasonable fees and disbursements of counsel to the
Underwriters) in connection with such qualification and in connection
with the determination of the eligibility of the Offered Certificates
for investment under the laws of such jurisdiction as the
Underwriters may reasonably designate, if any.
J. The Company will file or cause to be filed with the
Commission within fifteen days of the termination of the Commitment
Period (as such term is defined in the related Pooling and Servicing
Agreement), a Current Report on Form 8-K setting forth specific
information concerning the description of the Mortgage Pool (the
"Form 8-K - Mortgage Pool"). Without limiting the generality of any
other provision hereof, such Form 8-K - Mortgage Pool shall be deemed
to be a part of the Registration Statement and Prospectus from and
after the date it is first filed with the Commission.
K. The Company will cause any Computational Materials
(as defined in Section 9A hereof) with respect to the Offered
Certificates which are delivered by any Underwriter to the Company
pursuant to Section 9A hereof to be filed with the Commission on a
Current Report on Form 0-X (xxx "Xxxx 0-X - Xxxxxxxxxxxxx Materials")
at or before the time of filing of the Prospectus pursuant to Rule
424(b) under the 1933 Act; provided, however, that the Company shall
have no obligation to file any such materials which, in the
reasonable determination of the Company after consultation with such
Underwriter (i) are not, based upon the advice of outside counsel to
the Company, required to be filed pursuant to the Xxxxxx Letters (as
defined in Section 9A hereof) or (ii) contain any erroneous
information or 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; it being understood, however, that
the Company shall have no obligation to review or pass upon the
accuracy or adequacy of, or to correct, any Computational Materials
provided by any Underwriter to the Company pursuant to Section 9A
hereof. The parties hereto agree that the Company shall have no
liability for any failure to file such Computational Materials on
such date if the related Underwriter has not delivered such materials
to the Company one business day prior to the date such filing is to
be made.
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L. The Company will cause any ABS Term Sheets (as
defined in Section 9A hereof) with respect of the Offered
Certificates which are delivered by any Underwriter to the Company
pursuant to Section 9A hereof to be filed with the Commission on one
or more Current Reports on Form 8-K (collectively, the "Form 8-K -
ABS Term Sheets") (i) at or before the time of filing of the
Prospectus pursuant to Rule 424(b) under the 1933 Act, in the case of
Structural Term Sheets (as defined in Section 9A hereof) and (ii)
within two business days of first use in the case of Collateral Term
Sheets (as defined in Section 9A hereof); provided, however, that the
Company shall have no obligation to file any such materials which, in
the reasonable determination of the Company after consultation with
such Underwriter (i) are not, based upon advice of outside counsel to
the Company, required to be filed pursuant to the PSA Letter (as
defined in Section 9A hereof), (ii) do not contain the legends
required by the PSA Letter or (iii) contain erroneous information or
contain any 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; it being understood, however, that
the Company shall have no obligation to review or pass upon the
accuracy or adequacy of, or to correct, any ABS Term Sheets provided
by any Underwriter to the Company pursuant to Section 9A hereof. The
parties hereto agree that the Company shall have no liability for any
failure to file such ABS Term Sheets on such dates if the related
Underwriter has not delivered such materials to the Company one
business day prior to the date such filing is to be made.
6. Conditions of the Underwriters' Obligation. The obligation of
the Underwriters to purchase and pay for the Offered Certificates of a Series
as provided herein and the Pricing Agreement shall be subject to the accuracy
as of the date hereof, the Execution Time and the applicable Closing Date (as
if made at such Closing Date) of the representations and warranties of the
Company contained herein (including those representations and warranties set
forth in the Pooling and Servicing Agreement and incorporated herein), to the
accuracy of the statements of the Company made in any certificate or other
document delivered pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder, and to the following additional
conditions:
A. The Registration Statement shall have become
effective no later than the date hereof, and no stop order suspending
the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened, and the Prospectus shall have been filed pursuant to
Rule 424(b) of the 1933 Act as shall be required pursuant to such
Rule.
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B. The Underwriters shall have received the Pooling and
Servicing Agreement and the Offered Certificates in form and
substance satisfactory to the Underwriters, duly executed by all
signatories required pursuant to respective terms thereof.
C. (1) The Underwriters hall have received the
favorable opinion of Xxxxxxx & Xxxxx L.L.P., special counsel to the
Company, or of such other counsel to the Company as shall be
acceptable to the Underwriters, such opinion or opinions, dated the
Closing Date, in form and substance satisfactory to the Underwriters,
and collectively covering the substantive matters referred to in
Appendix A attached hereto.
(2) The Underwriters shall have received the favorable
opinion of Stroock & Stroock & Xxxxx LLP, special counsel to the
Underwriters, dated the Closing Date, with respect to the Pooling and
Servicing Agreement, the Certificates of such Series, the due
authorization, execution and delivery of this Agreement and the
Pricing Agreement, and such other matters as the Underwriters may
reasonably request.
In rendering their opinions, the counsel described in this
Paragraph C may rely, as to matters of fact, on certificates of
responsible officers of the Company, the Trustee and public
officials. Such opinions may also assume the due authorization,
execution and delivery of the instruments and documents referred to
therein by the parties thereto other than the Company.
D. The Underwriters shall have received a letter from
Price Waterhouse LLP, dated the date of the Prospectus Supplement, in
form and substance satisfactory to the Underwriters, to the effect
that they have performed certain specified procedures requested by
the Underwriters with respect to the information set forth in the
Prospectus and certain matters relating to the Company.
E. The Class A Certificates shall have been rated in the
highest rating category by Xxxxx'x Investors Service, Inc.
("Moody's") and Fitch Investors Service, L.P. ("Fitch"), and such
ratings shall not have been rescinded. The Class M-IA and Class M-
IIA Certificates shall have been rated "Aa2" by Moody's and "AA" by
Fitch, and such ratings shall not have been rescinded. The Class
M-IB and Class M-IIB Certificates shall have been rated "A2" by
Moody's and "A" by Fitch, and such ratings shall not have been
rescinded. The Class B Certificates shall have been rated "Baa3" by
Xxxxx'x and "BBB" by Fitch, and such ratings shall not have been
rescinded The Underwriters and counsel for the Underwriters shall
have received copies, addressed to the Underwriters and upon which
they may rely, of any opinions of counsel supplied to the rating
organizations relating to any matters with respect to the
Certificates. Any such opinions shall be dated the Closing Date.
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F. The Underwriters shall have received from the Company
a certificate, signed by the president, an executive vice president
or a vice president of the Company, dated the Closing Date, to the
effect that the signer of such certificate has carefully examined the
Registration Statement (excluding Form 8-K - Computational Materials
and Form 8-K ABS Term Sheets), the Pooling and Servicing Agreement
and this Agreement and that, to the best of his or her knowledge
based upon reasonable investigation, the representations and
warranties of the Company in this Agreement, as of the Closing Date,
in the Pooling and Servicing Agreement and in all related agreements,
as of the date specified in such agreements, are true and correct,
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Closing Date and that no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the best of
his or her knowledge, are contemplated by the Commission..
The Company shall attach to such certificate an incumbency
certificate and shall certify in an officer's certificate a true and
correct copy of its articles of incorporation and bylaws which are in
full force and effect as of each relevant date and on the date of
such certificate and a certified true copy of the resolutions of its
Board of Directors with respect to the transactions contemplated
herein.
G. The Underwriters shall have received a favorable
opinion of counsel to the Trustee, dated the Closing Date, in form
and substance satisfactory to the Underwriters and covering the
substantive matters referred to in Appendix B attached hereto.
In rendering such opinion, such counsel may rely, as to
matters of fact, on certificates of responsible officers of the
Company, the Trustee and public officials. Such opinion may also
assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto
other than the Trustee.
H. The Underwriters shall have received from the Trustee
a certificate, signed by the president, a senior vice president or a
vice president of the Trustee, dated the Closing Date, to the effect
that each person who, as an officer or representative of the Trustee,
signed or signs the Certificates, the Pooling and Servicing Agreement
or any other document delivered pursuant hereto, on the Execution
Time or on the Closing Date, in connection with the transactions
described in 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, and the signatures of such persons appearing on such
documents are their genuine signatures.
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I. Reserved.
J. On or prior to the Closing Date, there has been no
downgrading, nor has any notice been given of (i) any intended or
potential downgrading or (ii) any review or possible changes in
rating the direction of which has not been indicated, in the rating
accorded and originally requested by the Company relating to any
previously issued mortgage pass-through securities of the Company by
any "nationally recognized statistical rating organization" (as such
term is defined for purposes of the Exchange Act).
K. Reserved.
L. There has not occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, since the Date
of the Company's Recent Financial Statements, of the Company, its
parent company or its subsidiaries that is in the Representative's
judgment material and adverse and that makes it in the
Representative's judgment impracticable to market the Offered
Certificates on the terms and in the manner contemplated in the
Prospectus.
M. The Underwriters and counsel for the Underwriters
shall have received copies of any separate opinions of counsel to the
Company supplied to the Trustee or any of Moody's or Fitch relating
to matters with respect to the Offered Certificates, and such
opinions shall be dated the Closing Date and addressed to the
Underwriters and upon which they may rely.
N. The Underwriters shall have received such further
information, certificates and documents as the Underwriters may
reasonably have requested not less than one (1) full business day
prior to the Closing Date.
O. There shall have been executed and delivered by Aames
Financial Corporation, the corporate parent of the Company ("AFC"), a
letter agreement with the Underwriters, pursuant to which AFC agrees
to become jointly and severally liable with the Company for the
payment of the Joint and Several Obligations (as defined in such
letter agreement). Such letter agreement with the Underwriters is
substantially in the form of Exhibit A hereto.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects, as determined by the Representative
and counsel to the Underwriters, when and as provided in this Agreement, this
Agreement and/or Pricing Agreement and all obligations of the Underwriters
hereunder and thereunder, may be canceled on, or at any time prior to, the
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Closing Date by the Representative. Notice of such cancellation shall be given
to the Company in writing, or by telephone or telegraph confirmed in writing.
The Underwriters and the Company shall receive, subsequent to the
Closing Date, a letter from Price Waterhouse LLP, dated on or before the filing
of the Form 8-K - Mortgage Pool in form and substance satisfactory to the
Underwriters, to the effect that they have performed certain specified
procedures requested by the Underwriters with respect to the information set
forth in such Form 8-K - Mortgage Pool.
7. Expenses. If the sale of the Certificates of any Series
provided for herein is not consummated by reason of a default by the Company in
its obligations hereunder (including the failure to satisfy any of the
conditions specified in Section 6), except in the case of a termination of this
Agreement in accordance with Section 12 hereof, then the Company will reimburse
the Underwriters, upon demand, for all reasonable out-of-pocket expenses
(including, but not limited to, the reasonable fees and expenses of their
counsel) that shall have been incurred by them in connection with their
investigation with regard to the Company and the Offered Certificates and the
proposed purchase and sale of the Offered Certificates.
8. Indemnification and Contribution.
A. Regardless of whether any Offered Certificates are
sold, the Company will indemnify and hold harmless each Underwriter,
each of their respective officers and directors and each person who
controls any Underwriter within the meaning of the 1933 Act or the
Exchange Act, against any and all losses, claims, damages, or
liabilities (including the cost of any investigation, legal and other
expenses incurred in connection with and amounts paid in settlement
of any action, suit, proceeding or claim asserted), joint or several,
to which they or any of them may become subject, under the 1933 Act,
the Exchange Act or other federal or state law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material
fact contained (i) in the Registration Statement or arise out of or
are based upon the omission or alleged omission (and in the case of
any Computational Materials, as to which a Mortgage Pool Error (as
defined below) occurred) to state therein a material fact necessary
to make the statements therein not misleading or (ii) in the
Prospectus or arise out of or are based upon the omission or alleged
omission (and in the case of any Computational Materials, as to which
a Mortgage Pool Error occurred) to state therein a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it in connection with investigating or
defending against such loss, claim, damage, liability or action;
provided, however, that (a) the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an
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untrue statement or alleged untrue statement or omission or alleged
omission made therein (x) in reliance upon and in conformity with
written information furnished to the Company by or on behalf of an
Underwriter, as described (and to the extent described) in Section 9A
of this Agreement, or (y) in the Form 8-K - Computational Materials
or in any Form 8-K - ABS Term Sheet, or any amendment or supplement
thereof, except to the extent that any untrue statement or alleged
untrue statement therein results (or is alleged to have resulted)
directly from, in the case of the Form 8-K - Computational Materials,
any Mortgage Pool Error, or, in the case of any Form 8-K - ABS Term
Sheets, any error in Company Provided Information that was used in
the preparation of (X) any Computational Materials or ABS Term Sheets
(or amendments or supplements thereof) included in the Form 8-K -
Computational Materials or Form 8-K - ABS Term Sheets (or amendment
or supplement thereof), or (Y) any written or electronic materials
furnished to prospective investors on which the Computational
Materials or Collateral Term Sheets (or amendments or supplements)
were based, (b) such indemnity with respect to any Corrected
Statement (as defined below) in such Prospectus (or supplement
thereto) shall not inure to the benefit of such Underwriter (or any
person controlling such Underwriter) from whom the person asserting
any loss, claim, damage or liability purchased the Offered
Certificates that are the subject thereof if such person did not
receive a copy of a supplement to such Prospectus at or prior to the
confirmation of the sale of such Offered Certificates and the untrue
statement or omission of a material fact contained in such Prospectus
(or supplement thereto) was corrected (a "Corrected Statement") in
such other supplement and such supplement timely was furnished by the
Company to such Underwriter within a reasonable time prior to the
delivery of such confirmation, and (c) such indemnity with respect to
any error in Company Provided Information or any Mortgage Pool Error
shall not inure to the benefit of such Underwriter (or any person
controlling such Underwriter) from whom the person asserting any
loss, claim, damage or liability received any Computational Materials
or ABS Term Sheets (or any written or electronic materials on which
the Computational Materials or any ABS Term Sheets are based) that
were prepared on the basis of such erroneous Company Provided
Information or Mortgage Pool Error, if, within a reasonable time
prior to the time of confirmation of the sale of the applicable
Offered Certificates to such person, the Company notified such
Underwriter in writing of such error or provided in written or
electronic form information superseding or correcting such error (in
any such case, a "Corrected Error"), and such Underwriter failed to
notify such person thereof or to actually or constructively deliver
to such person corrected Computational Materials or ABS Term Sheets
(or underlying written or electronic materials). This indemnity
agreement will be in addition to any liability which the Company may
otherwise have. "Mortgage Pool Error" shall mean any error or
omission in the information concerning the characteristics of the
Mortgage Loans furnished by or on behalf of the Company to any of the
Underwriters in writing or by electronic transmission.
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B. Regardless of whether any Offered Certificates are
sold, each Underwriter, will severally indemnify and hold harmless
the Company, each of its officers and directors and each person, if
any, who controls the Company within the meaning of the 1933 Act or
the Exchange Act against any losses, claims, damages or liabilities
to which they or any of them become subject under the 1933 Act, the
Exchange Act or other federal or state law or regulation, at common
law or otherwise, to the same extent as the foregoing indemnity,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in (i) the
Registration Statement or arise out of or are based upon the omission
or alleged omission to state therein a material fact necessary to
make the statements therein not misleading or in (ii) the Prospectus
or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made therein (a) in reliance upon and in
conformity with written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter, as
described in Section 9A of this Agreement, specifically for use in
the preparation thereof and so acknowledged in writing, or (b) any
Computational Materials or ABS Term Sheet (or amendments or
supplements thereof) furnished to the Company by such Underwriter
pursuant to Section 9A hereof and incorporated by reference in such
Registration Statement or the related Prospectus or any amendment or
supplement thereof (except that no such indemnity shall be available
for any losses, claims, damages or liabilities, or actions in respect
thereof resulting from any error in Company Provided Information or
any Mortgage Pool Error, other than a Corrected Error), and such
Underwriter or the Underwriters, as the case may be, will reimburse
the Company for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending against
such loss, claim, damage, liability or action.
C. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Paragraphs A and B above,
such person (hereinafter called the indemnified party) shall promptly
notify the person against whom such indemnity may be sought
(hereinafter called the indemnifying party) in writing thereof; but
the omission to notify the indemnifying party shall not relieve such
indemnifying party from any liability which it may have to any
indemnified party otherwise than under such Paragraph. The
indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party
may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any
such proceeding any indemnified party shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party
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unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel, or (ii) the
named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them or because different defenses are available to such parties. It
is understood that the indemnifying party shall not, in connection
with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties,
and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the
Representative in the case of parties indemnified pursuant to
Paragraph A and by the Company in the case of parties indemnified
pursuant to Paragraph B. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there is a final
judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated above, the
indemnifying party agrees that it shall be liable for any settlement
of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such proceeding.
D. If the indemnification provided for in this Section 8
is unavailable to an indemnified party in respect of any losses,
claims, damages or liabilities referred to herein, then each
indemnifying party, in lieu of indemnifying such indemnified party,
shall:
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(i) in the case of any such losses, claims,
damages or liabilities which do not arise out of or are not
based upon any untrue statement or omission of a material fact
in any Computational Materials or ABS Term Sheet (or any
amendments or supplements thereof) contribute to the amount
paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities in such proportion as
is appropriate to reflect the relative benefits received by
the Company and the Underwriters from the sale of the Offered
Certificates; and
(ii) in the case of any such losses, claims,
damages or liabilities which arise out of or are based upon
any untrue statements or omissions of a material fact in any
Computational Materials or ABS Term Sheet (or any amendments
or supplements thereof), contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages or liabilities in such proportion as is
appropriate to reflect both the relative benefits received by
the Company and the Underwriters from the sale of the Offered
Certificates and the relative fault of the Company and of the
applicable Underwriter or Underwriters in connection with the
statements or omissions that resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations.
The relative benefits received by the Company and the
Underwriters shall be deemed to be in such proportion so that the
Underwriters are responsible for that portion determined by
multiplying the total amount of such losses, claims, damages or
liabilities, including legal and other expenses, by a fraction, the
numerator of which is (x) the excess of the Aggregate Resale Price of
the Offered Certificates of the related Series over the aggregate
purchase price of the Offered Certificates specified in the Pricing
Agreement and the denominator of which is (y) the Aggregate Resale
Price of such Offered Certificates, and the Company is responsible
for the balance, provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of
the immediately preceding sentence, the "Aggregate Resale Price" of
the Offered Certificates at the time of any determination shall be
the weighted average of the purchase prices (in each case expressed
as a percentage of the aggregate principal amount of the Offered
Certificates so purchased), determined on the basis of such principal
amounts, paid to the Underwriters by all initial purchasers of the
Offered Certificates from the Underwriters. The relative fault of
the Company and the Underwriters shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact of the omission or alleged omission to state a
material fact relates to information supplied by the Company or by
the applicable Underwriter or Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Underwriters' obligations
in this Paragraph D
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to contribute are several in proportion to their respective
underwriting obligations and are not joint.
E. The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in Paragraph D. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in Paragraph D shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of Section 8D(i), no Underwriter shall
be required to contribute any amount by which the difference between
the Aggregate Resale Price and the aggregate purchase price of the
Offered Certificates specified in the Pricing Agreement exceeds the
amount of any damages that such Underwriter has otherwise been
required to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission.
F. The Company and the Underwriters each expressly
waive, and agree not to assert, any defense to their respective
indemnification and contribution obligations under this Section 8
which they might otherwise assert based upon any claim that such
obligations are unenforceable under federal or state securities laws
or by reasons of public policy.
G. The obligations of the Company under this Section 8
shall be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Underwriters within the meaning of
the 1933 Act or the Exchange Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any
liability that the Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company
and to each person, if any, who controls the Company within the
meaning of the 1933 Act or the Exchange Act; provided, however, that
in no event shall the Company or the Underwriters be liable for
double indemnification.
9. Information Supplied by Underwriters; Representations and Warranties of
the Underwriters.
A. The Underwriters and the Company agree that the
following constitute the only information furnished by or on behalf
of the Underwriters to the Company for the purposes of Sections 2B
and 8A hereof:
(i) the statements set forth in the last
paragraph on the front cover page of the Prospectus Supplement
regarding market making, and information
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under the heading "Underwriting" in the Prospectus Supplement,
to the extent such information relates to all of the
Underwriters and not to any particular Underwriter or
affiliate of any particular Underwriter, have been supplied by
or on behalf of all of the Underwriters jointly;
(ii) the information under the heading
"Underwriting" in the Prospectus Supplement, to the extent
such information relates to a particular Underwriter or
affiliate of such Underwriter, and the information contained
in any Form 8-K - Computational Materials and in any Form 8-K
- ABS Term Sheets to the extent supplied to the Company by or
on behalf of such Underwriter to be filed in the related
Current Report on Form 8-K, in each case excluding any Company
Provided Information and only to the extent not substantially
identical in form, substance, scope, content and context to
any information set forth in the Prospectus, has been supplied
by such Underwriter and shall relate to and be the several
responsibility of such Underwriter and no other Underwriter.
"Computational Materials" shall mean those materials delivered by an
Underwriter to the Company within the meaning of the no-action letter dated May
20, 1994 issued by the Division of Corporation Finance of the Commission to
Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated,
and Xxxxxx Structured Asset Corporation and the no-action letter dated May 27,
1994 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Xxxxxx Letters") for which the
filing of such material is a condition of the relief granted in such letters.
"ABS Term Sheet" shall mean those materials delivered by an Underwriter to the
Company in the form of "Structural Term Sheets" or "Collateral Term Sheets", in
each case within the meaning of the no-action letter dated February 13, 1995
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter") for which the filing of such material
is a condition of the relief granted in such letter. "Company Provided
Information" shall mean any information presented in any ABS Term Sheet (or
underlying materials) provided to the Underwriters by or on behalf of the
Company specifically for use in ABS Term sheets in writing or through
electronic or magnetic data storage or transmission methods, in tabular,
graphic or textual form, regardless of whether or not such information is
presented in any ABS Term Sheets in the same format in which such information
was provided to the Underwriters, but shall not include (i) any such
information to the extent that, as presented in any ABS Term Sheet, such
information contains, or is alleged to contain, any untrue statement of a
material fact or omits, or is alleged to omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading due to any (a) typographical or similar error or (b) stylistic,
contextual or other presentational considerations with respect to such ABS Term
Sheets, including the format of tables, the phraseology of text or the
placement or juxtaposition of such information in relation to any other
information presented therein (whether or not Company Provided Information), in
each case, not present in such information (in the aggregate), or in the manner
of presentation or communication thereof to the Underwriters, when provided to
the Underwriters
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by the Company or (ii) any information set forth in an ABS Term Sheet to the
extent that such information, as presented in the Prospectus is not
substantially identical in form, substance, scope, content or context thereto.
Each Underwriter shall deliver to the Company (or counsel to the Company) a
complete copy of all materials (which, if reasonably requested by the Company,
shall be on computer compatible disk or such other acceptable electronic form)
provided by such Underwriter to prospective investors in such Offered
Certificates which constitute or are deemed to constitute Computational
Materials or ABS Term Sheets, at least one business day before the date or
dates on which the related Form 8-K - Computational Materials or Form 8-K - ABS
Term Sheets relating to the Offered Certificates are required to be filed by
the Company with the Commission pursuant to Section 5K or 5L hereof.
B. Each Underwriter severally represents and
warrants to and agrees with the Company, that, as of the date of the
related Closing Date:
(i) any Computational Materials and ABS Term
Sheets furnished by it to the Company pursuant to Section 9A
hereof constitute (either in original, aggregated or
consolidated form) all of the materials furnished by it to
prospective investors prior to the time of delivery thereof to
the Company and that it reasonably believes that such
materials constitute the type of materials contemplated by the
Xxxxxx Letters and the PSA Letter; and
(ii) on the date of delivery of any such
Computational Materials or ABS Term Sheets to the Company
pursuant to this Section 9 and on the related Closing Date
such Computational Materials and ABS Term Sheets (or
materials) did not and will not include any untrue statement
of a material fact, or, when read in conjunction with the
related Prospectus and Prospectus Supplement, omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading.
Notwithstanding the foregoing, the Underwriters make no representation
or warranty as to whether any Computational Materials or ABS Term Sheets (or
any written or electronic materials on which such Computational Materials or
ABS Term Sheets are based) included or will include any untrue statement
resulting directly from any Mortgage Pool Error or, in the case of an ABS Term
Sheet, any error in Company Provided Information.
Each Underwriter agrees that it will not represent to investors that
any Computational Materials or ABS Term Sheets delivered thereto were prepared
by, or disseminated on behalf of, the Company.
10. Notices. All communications hereunder shall be in writing
and, if sent to the Underwriters, shall be mailed or delivered or telecopied
and confirmed in writing to the Representative at 000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X.
25
26
Xxxxxxxx, with a copy to the Representative's General Counsel's office at 000
Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and, if sent to the Company,
shall be telegraphed and confirmed in writing to the Company at 000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxxxx; with
a copy addressed to Xxxxxxx & Xxxxx L.L.P., 000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, Xx.
11. Survival. All representations, warranties, covenants and
agreements of the Company contained herein or in agreements or certificates
delivered pursuant hereto, the agreements of the Underwriters and the Company
contained in Section 8 hereof, and the representations, warranties and
agreements of the Underwriters contained in Section 3 hereof, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Underwriters or any controlling persons, or any subsequent
purchaser or the Company or any of its officers, directors or any controlling
persons, and shall survive delivery of and payment for the Certificates. The
provisions of Sections 5, 7 and 8 hereof shall survive the termination or
cancellation of this Agreement or any Pricing Agreement.
12. Termination. The Underwriters shall have the right to
terminate this Agreement and/or the Pricing Agreement by giving notice as
hereinafter specified at any time at or prior to the applicable Closing Date if
(a) trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the Nasdaq National Market, the Chicago Board Options Exchange, the
Chicago Board of Trade or the London Stock Exchange Limited, (b) trading of any
securities of the Company or AFC shall have been suspended on any exchange or
in any over-the-counter market, (c) a general moratorium on commercial banking
activities shall have been declared by any of the federal, California or New
York State authorities, (d) there shall have occurred any outbreak or
escalation of hostilities or any change in the national or international
financial markets or any calamity or crisis which, in the Representative's
reasonable judgment, is material and adverse, and, in the case of any of the
events specified in clauses (a) through (d), such event singly or together with
any other such event makes it in the Representative's reasonable judgment
impractical to market the Offered Certificates. Any such termination shall be
without liability of any other party except that the provisions of Paragraph G
of Section 5 (except with respect Section 5G(vii)) and Section 8 hereof shall
at all times be effective. If the Underwriters elect to terminate this
Agreement and/or the Pricing Agreement as provided in this Section 12, the
Company shall be notified promptly by the Representative by telephone, telegram
or facsimile transmission, in any case, confirmed by letter.
26
27
13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and assigns
(which successors and assigns do not include any person on purchasing a
Certificate from the Underwriters), and the officers and directors and
controlling persons referred to in Section 8 hereof and their respective
successors and assigns, and no other persons will have any right or obligations
hereunder.
14. Applicable Law; Venue. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York.
Any action or proceeding brought to enforce or arising out of any provision of
this Agreement shall be brought only in a state or federal court located in the
Borough of Manhattan, New York City, New York, and the parties hereto expressly
consent to the jurisdiction of such courts and agree to waive any defense or
claim of forum non conveniens they may have with respect to any such action or
proceeding brought.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall together constitute but one and the same
instrument.
27
28
16. Amendments and Waivers. This Agreement may be amended,
modified, altered or terminated, and any of its provisions waived, only in a
writing signed on behalf of the parties hereto.
Very truly yours,
AAMES CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President - Finance
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
For itself and as
Representative of the several
Underwriters named in Schedule I
to the Pricing Agreement
29
EXHIBIT A
June 18, 1997
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
as Representative of the several Underwriters
named in Schedule I to the Pricing Agreement
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Underwriting Agreement for Aames Mortgage Trust, dated June 18, 1997 the
"Underwriting Agreement") between Aames Capital Corporation ("Aames") and
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation as Representative of
the several Underwriters named in Schedule I to the Pricing Agreement
dated June 18, 1997 (the "Pricing Agreement")
--------------------------------------------------------------------------------
Ladies and Gentlemen:
Pursuant to the Underwriting Agreement and Pricing Agreement
(collectively, the "Designated Agreement"), Aames has undertaken certain
financial obligations with respect to the indemnification of the Underwriters
with respect to the Registration Statement, and the Prospectus described in the
Designated Agreement. Any financial obligations of Aames under the Designated
Agreement, whether or not specifically enumerated in this paragraph, are
hereinafter referred to as the "Joint and Several Obligations;" provided,
however, that "Joint and Several Obligations" shall mean only the financial
obligations of Aames under the Designated Agreement (including the payment of
money damages for a breach of any of Aames' obligations under the Designated
Agreement, whether financial or otherwise) but shall not include any
obligations not relating to the payment of money.
As a condition of its execution of the Designated Agreement, the
Underwriters have required the undersigned, Aames Financial Corporation
("AFC"), the parent corporation of Aames, to acknowledge its joint and several
liability with Aames for the payment of the Joint and Several Obligations under
the Designated Agreement.
Now, therefore, the Underwriters and AFC do hereby agree that:
Exhibit A-1
30
(i) AFC hereby agrees to be absolutely and
unconditionally jointly and severally liable with Aames to the
Underwriters for the payment of the Joint and Several Obligations
under the Designated Agreement.
(ii) AFC may honor its obligations hereunder either by
direct payment of any Joint and Several Obligations or by causing any
Joint and Several Obligations to be paid to the Underwriters by Aames
or another affiliate of AFC.
Exhibit A-2
31
Capitalized terms used herein and not defined herein shall have their
respective meanings as set forth in the Designated Agreement.
Very truly yours,
AAMES FINANCIAL CORPORATION
By:_______________________________
Name:
Title:
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
By:_______________________________
Name:
Title:
For itself and as
Representative of the several
Underwriters named in Schedule I
to the Pricing Agreement
Exhibit A-3
32
APPENDIX A
FORM OF OPINION OF
COUNSEL TO THE COMPANY
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of California.
2. AFC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
3. The Company has full corporate power and corporate authority to own
its assets and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under the Pooling and Servicing
Agreement, the Underwriting Agreement and Pricing Agreement (the "Documents").
4. AFC has full corporate power and corporate authority to own its
assets and to conduct its business as now being conducted and to enter into and
perform its obligations under the Letter Agreement.
5. The Company is duly qualified as a foreign corporation and is in
good standing under the laws of each jurisdiction where it owns or leases any
real property or has any permanently located employees.
6. The Company has all material licenses, franchises and permits of and
from all public, regulatory or governmental officials or bodies, necessary to
(i) conduct its business as now being conducted and as described in the
Prospectus, and (ii) perform its obligations under the Documents.
7. The execution, acknowledgment, delivery and performance by the
Company of the Documents have been duly authorized by all requisite corporate
action.
8. The execution, acknowledgment, delivery and performance by AFC of
the Letter Agreement have been duly authorized by all requisite corporate
action.
9. Neither the execution or delivery of, nor the performance by the
Company of its obligations under, the Documents, nor the offer, issuance, sale
or delivery of the Certificates (i) violates any of the provisions of the
Company's Articles of Incorporation or By-laws, (ii) violates any judgment,
decree, writ, injunction, award, determination or order known to such counsel
which is applicable to Company or any of its properties, or by which the
Company or any of its properties are bound or affected, (iii) conflicts with,
or results in a breach of, or constitutes a default under, any of the
provisions of any of the Company's material contracts, or (iv) results in the
creation or imposition of any lien on any of its properties pursuant to the
terms of any of the Company material contracts.
Appendix X-0
00
00. Neither the execution or delivery of, nor the performance by AFC of
its obligations under, the Letter Agreement (i) violates any of the provisions
of AFC's Certificate of Incorporation or By-laws, (ii) violates any judgment,
decree, writ, injunction, award, determination or order known to such counsel
which is applicable to AFC or any of its properties, or by which AFC or any of
its properties are bound or affected, (iii) conflicts with, or results in a
breach of, or constitutes a default under, any of the provisions of any of
AFC's material contracts, or (iv) results in the creation or imposition of any
lien on any of its properties pursuant to the terms of any of AFC's material
contracts.
11. No consent, approval or authorization from, or registration or
filing with or notice to, any court or governmental body is required to be
obtained, made or given by the Company in connection with its authorization,
execution, delivery of, or performance of its obligations under the Documents
or in connection with the issuance, sale or delivery of the Offered
Certificates.
12. No consent, approval or authorization from, or registration or
filing with or notice to, any court or governmental body is required to be
obtained, made or given by AFC in connection with its authorization, execution,
delivery of, or performance of its obligations under the Letter Agreement.
13. Based upon such counsel's knowledge, there is no pending or
threatened action, suit, proceeding or investigation before or by any court,
administrative agency, arbitrator or governmental body against or affecting the
Company which, if decided adversely, would materially and adversely affect (i)
the ability of the Company to perform its obligations under, or the validity or
enforceability of, the Documents, (ii) any mortgaged property or title of any
mortgagor to such mortgaged property, or (iii) the Trustee's ability to
foreclose or otherwise enforce the liens of the mortgage loans.
14. The Registration Statement is effective under the 1933 Act and, to
the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, or proceeding for
that purpose instituted or threatened by the Commission.
15. The Registration Statement as of its effective date and the
Prospectus as of the date there of, other than the Computational Materials,
numerical, financial and statistical data included or incorporated by reference
in the Registration Statement and the Prospectus, as to which such counsel need
not express an opinion, appeared on its face to be appropriately responsive in
all material respects to the applicable requirements of the 1933 Act and the
rules and regulations thereunder, except that such counsel need not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except for those as
contemplated by paragraph 20 and 21 below.
16. The execution and delivery of each of the Underwriting Agreement
and the Pricing Agreement has been duly authorized by all necessary corporate
action of the Company and each of the Underwriting Agreement and the Pricing
Agreement has been duly executed and delivered by the Company; the execution
and delivery of the Letter Agreement has been duly authorized
Appendix A-2
34
by all necessary corporate action of AFC and the Letter Agreement has been duly
executed and delivered by AFC.
17. The execution and delivery of the Pooling and Servicing Agreement
has been duly authorized by the Company and the Agreement has been duly
executed and delivered by the Company and constitutes a valid, legal and
binding agreement of the Company, enforceable against the Company in accordance
with its terms except as enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, liquidation, receivership, moratorium or other
similar laws relating to or affecting creditors' rights generally or (b)
general principles of equity or public policy, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
18. The Offered Certificates will, when duly executed and authenticated
as specified in the Pooling and Servicing Agreement and delivered by the
Trustee on behalf of the Trust in exchange for the Mortgage Loans in the
related Mortgage Loan Group and the other assets conveyed by the Company to the
Trust pursuant to the Pooling and Servicing Agreement, be entitled to the
benefits of the Pooling and Servicing Agreement afforded to the related Class.
19. The Offered Certificates and the Pooling and Servicing Agreement
conform in all material respects to the descriptions thereof contained in the
Prospectus.
20. The statements in the base Prospectus and the Prospectus
Supplement, as the case may be, under the headings "Risk Factors," "Certain
Legal Aspects of the Mortgage Loans," "Certain Federal Income Tax
Considerations," and "ERISA Considerations," to the extent that they constitute
matters of California, New York or federal law or legal conclusions with
respect thereto, are correct in all material respects to the extent of those
consequences or aspects that are discussed.
21. Each of the REMIC Pools as described in the Pooling and Servicing
Agreement will qualify 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"), the Offered Certificates and Class C Certificates
described in the Prospectus and issued pursuant to the Pooling and Servicing
Agreement will be treated as "regular interests" in the REMIC for purposes of
Code Section 860G(a)(1) and the Class R Certificates issued pursuant to the
Pooling and Servicing Agreement will be treated as the "residual interest" in
the REMIC for purposes of Code Section 860G(a)(2), assuming: (i) an election
is made to treat each REMIC Pool as a REMIC, (ii) compliance with the Pooling
and Servicing Agreement and compliance with changes in the law, including any
amendments to the Code or applicable Treasury regulations thereunder. None of
the REMIC Pools will be subject to California income or franchise tax in effect
on the date of such opinion, as long as such REMIC Pool complies with any
changes in the statutory and regulatory requirements of California law. Such
counsel may state that a REMIC Pool may, however, be subject to California
income or franchise tax in certain circumstances where federal income tax is
also imposed, such as in the case of net income from foreclosure property; and
in addition, a REMIC Pool may be subject to the minimum tax imposed under the
California Revenue and Taxation Code Sections specified therein.
Appendix X-0
00
00. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended, and the Trust created
thereby is not required to be registered, and neither the Company nor AFC is an
"investment company" as such term is defined, under the Investment Company Act
of 1940, as amended.
23. Neither the transfer of the Mortgage Loans to the Trust, the
issuance and sale of the Offered Certificates to the Underwriters pursuant to
the Underwriting Agreement, the compliance by the Company with other provisions
of the Underwriting Agreement, the Pooling and Servicing Agreement and the
Certificates, nor the consummation of the transactions therein contemplated as
to the transfer of the Mortgage Loans and the sale of the Offered Certificates
by the Company require the consent, approval, authorization, order,
registration or qualification of or with any court or governmental authority,
except such as have been obtained or effected under the 1933 Act (and except
with respect to any consent, approval, authorization, registration or
qualification which may be required under state securities or Blue Sky laws or
with respect to the purchase and sale of the retained Certificates, as to which
matters such counsel need not express an opinion) and such other approvals as
have been obtained, or conflict with or result in a breach or violation of any
of the terms and provisions of, or constitute a default under, the charter or
bylaws of the Company, or any statute or regulation applicable to the Company
or, to the best of such counsel's knowledge, any judgment, decree or order
applicable to the Company of any court, regulatory body, administrative agency
or other governmental authority.
24. Assuming compliance with the provisions of the Pooling and
Servicing Agreement, and subject to the limitations and conditions set forth
therein, the Trustee and the Company, acting in its capacity as Servicer under
the terms of the Pooling and Servicing Agreement, will be entitled to enforce
the terms of each Note and Mortgage in accordance with their respective terms,
except to the extent such enforcement may be limited by (a) bankruptcy,
insolvency, reorganization, liquidation, receivership, moratorium or other
similar laws relating to or affecting creditors' rights generally or (b)
general principles of equity or public policy, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
In addition, such counsel shall state that nothing has come to their
attention that would lead them to believe that the Registration Statement
(other than the Computational Materials, the financial, numerical, statistical
and quantitative information included or incorporated by reference therein, as
to which such counsel need not make any statement), at the Effective Time,
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 (other than the Computational Materials,
the financial, numerical, statistical and quantitative information included or
incorporated by reference therein, as to which such counsel need not make any
statement), at its issue date or at the date of the Closing, contained 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.
Appendix X-0
00
XXXXXXXX X
FORM OF OPINION OF COUNSEL TO TRUSTEE
1. The Trustee is a national banking association with trust
powers, duly organized and validly existing in good standing under the laws of
the United States of America, and has all requisite power and authority to
enter into the Pooling and Servicing Agreement and perform the obligations of
trustee thereunder.
2. The Pooling and Servicing Agreement has been duly authorized,
executed, and delivered by the Trustee and constitutes the legal, valid, and
binding obligation of the Trustee enforceable against the Trustee in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy and insolvency laws and other similar laws affecting the enforcement
of creditors' rights generally and by general equity principles.
3. The execution and delivery of the Pooling and Servicing
Agreement by the Trustee and the performance by the Trustee of its terms do not
conflict with or result in a violation (A) of any law or regulation of the
United States of America or the State of California governing the banking or
trust powers of the Trustee, or (B) the Articles of Association or By-laws of
the Trustee.
4. No approval, authorization, or other action by, or filing
with, any governmental authority of the United States of America or the State
of California having jurisdiction over the banking or trust powers of the
Trustee is required in connection with its execution and delivery of the
Pooling and Servicing Agreement or the performance by the Trustee of the terms
of the Pooling and Servicing Agreement.
5. The Trustee has the power and authority to perform its duties
pursuant to Sections 8.01 and 8.02 of the Pooling and Servicing Agreement to
act as a successor servicer, including the making of advances as described in
Sections 8.01 and 8.02 of the Pooling and Servicing Agreement.
6. The Certificates have been duly executed, authenticated and
delivered by the Trustee.
Appendix B-1
37
APPENDIX C
RESERVED
Appendix C-1
38
ANNEX A
AAMES CAPITAL CORPORATION
Mortgage Pass-Through Certificates
PRICING AGREEMENT
June 18, 1997
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
as Representative of the several Underwriters
named in Schedule I hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Aames Capital Corporation (the "Company") proposes, subject to the
terms and condition stated herein and the Underwriting Agreement, dated June
18, 1997 (the "Underwriting Agreement"), between the Company and Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation, as underwriter and as Representative
(in such capacity, the "Representative" of the several underwriters named in
Schedule I hereto (together with the Representative, the "Underwriters"), to
issue and sell to the Underwriters the series of mortgage pass-through
certificates specified in Schedule II hereto (the "Certificates"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty with respect to the Prospectus in Section 1 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented with
respect to the Certificates. Each reference to Representative contained in the
Underwriting Agreement shall be deemed to refer to the Representative named
herein. Unless otherwise defined herein, terms in the Underwriting Agreement
are used herein as therein defined.
Annex A-1
39
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Certificates in the form
heretofore delivered to you is now proposed to be filed or, in the case of a
supplement, mailed for filing with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to the Underwriters, and the Underwriters, severally and not
jointly, agree to purchase from the Company, at the time and at the purchase
price set forth in Schedule II hereto, the aggregate amount of each Class of
Certificates set forth opposite the name of such Underwriter set forth in
Schedule I hereto.
Annex A-2
40
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, and upon acceptance hereof by you,
this letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between the Underwriters and the Company.
Very truly yours,
AAMES CAPITAL CORPORATION
By:
-----------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
By:
-----------------------------------
Name:
Title:
For itself and as
Representative of the several
Underwriters named in
Schedule I hereto
Annex A-3
41
SCHEDULE I
Principal Principal Principal Principal Principal Principal
Amount of Amount of Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class A-4 Class A-5 Class A-6
Underwriter Certificates Certificates Certificates Certificates Certificates Certificates
----------- ------------ ------------ ------------ ------------ ------------ ------------
Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities $31,950,000 $ 4,725,000 $17,662,500 $ 4,387,500 $ 6,255,000 $ 8,550,000
Corporation
Prudential Securities $17,750,000 $ 2,625,000 $ 9,812,500 $ 2,437,500 $ 3,475,000 $ 4,750,000
Incorporated
Xxxxxx Xxxxxxx & Co. $ 7,100,000 $ 1,050,000 $ 3,925,000 $ 975,000 $ 1,390,000 $ 1,900,000
Incorporated
X.X. Xxxxxx Securities $ 7,100,000 $ 1,050,000 $ 3,925,000 $ 975,000 $ 1,390,000 $ 1,900,000
Inc.
NationsBanc Capital $ 7,100,000 $ 1,050,000 $ 3,925,000 $ 975,000 $ 1,390,000 $ 1,900,000
Markets, Inc.
Total $71,000,000 $10,500,000 $39,250,000 $ 9,750,000 $13,900,000 $19,000,000
Notional Principal Principal
Amount of Amount of Amount of
Class A-IO Class M-1F Class M-2F
Underwriter Certificates Certificates Certificates
----------- ------------ ------------ ------------
Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities $19,000,000 $ 3,847,500 $ 5,130,000
Corporation
Prudential Securities $ 0 $ 2,137,500 $ 2,850,000
Incorporated
Xxxxxx Xxxxxxx & Co. $ 0 $ 855,000 $ 1,140,000
Incorporated
X.X. Xxxxxx Securities $ 0 $ 855,000 $ 1,140,000
Inc.
NationsBanc Capital $ 0 $ 855,000 $ 1,140,000
Markets, Inc.
Total $19,000,000 $ 8,550,000 $11,400,000
42
Principal Principal Principal Principal Principal
Amount of Amount of Amount of Amount of Amount of
Class B-1F Class A-7 Class M-1A Class M-2A Class B-1A
Underwriter Certificates Certificates Certificates Certificates Certificates
------------ ------------ ------------ ------------ ------------ ------------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation $ 2,992,500 $108,810,000 $ 11,508,750 $ 11,508,750 $ 7,672,500
Prudential Securities $ 1,662,500 $ 60,450,000 $ 6,393,750 $ 6,393,750 $ 4,262,500
Incorporated
Xxxxxx Xxxxxxx & Co. $ 665,000 $ 24,180,000 $ 2,557,500 $ 2,557,500 $ 1,705,000
Incorporated
X.X. Xxxxxx Securities Inc. $ 665,000 $ 24,180,000 $ 2,557,500 $ 2,557,500 $ 1,705,000
NationsBanc Capital Markets, $ 665,000 $ 24,180,000 $ 2,557,500 $ 2,557,500 $ 1,705,000
Inc.
Total $ 6,650,000 $241,800,000 $ 25,575,000 $ 25,575,000 $ 17,050,000
2
43
SCHEDULE II
Registration Statement No. 333-21219
Base Prospectus June 18, 1997
Prospectus Supplement dated March 18, 1997
Title of Certificates: Class A-1
---------
Amount of Certificates: $71,000,000 (approximate)
Pass-Through Rate: 6.41%
Purchase Price Percentage: 99.89%
Cut-off Date: June 1, 1997
Closing: June 25, 1997
Denominations: $1,000.00 and integral multiples
of $1.00 in excess thereof.
Title of Certificates: Class A-2
---------
Amount of Certificates: $10,500,000 (approximate)
Pass-Through Rate: 6.52%
Purchase Price Percentage: 99.84%
Cut-off Date: June 1, 1997
Closing: June 25, 1997
Denominations: $1,000.00 and integral multiples
of $1.00 in excess thereof.
Title of Certificates: Class A-3
---------
Amount of Certificates: $39,250,000 (approximate)
Pass-Through Rate: 6.68%
Purchase Price Percentage: 99.759375
Cut-off Date: June 1, 1997
Closing: June 25, 1997
Denominations: $1,000.00 and integral multiples
of $1.00 in excess thereof.
Title of Certificates: Class A-4
---------
Amount of Certificates: $9,750,000 (approximate)
Pass-Through Rate: 6.95%
Purchase Price Percentage: 99.684375
Cut-off Date: June 1, 1997
44
Closing: June 25, 1997
Denominations: $1,000.00 and integral multiples
of $1.00 in excess thereof.
Title of Certificates: Class A-5
---------
Amount of Certificates: $13,900,000 (approximate)
Pass-Through Rate: 7.27%
Purchase Price Percentage: 99.618750
Cut-off Date: June 1, 1997
Closing: June 25, 1997
Denominations: $1,000.00 and integral multiples
of $1.00 in excess thereof.
Title of Certificates: Class A-6
---------
Amount of Certificates: $19,000,000 (approximate)
Pass-Through Rate: 6.92%
Purchase Price Percentage: 99.653125
Cut-off Date: June 1, 1997
Closing: June 25, 1997
Denominations: $1,000.00 and integral multiples
of $1.00 in excess thereof.
2
45
Title of Certificates: Class A-I0
----------
Amount of Certificates: $19,000,000 Notional Amount
(approximate)
Pass-Through Rate: 5.50%
Purchase Price Percentage: 14.01678%
Cut-off Date: June 1, 1997
Closing: June 25, 1997
Denominations: $1,000.00 and integral multiples
of $1.00 in excess thereof.
Title of Certificates: Class M-1F
----------
Amount of Certificates: $8,550,000 (approximate)
Pass-Through Rate: 7.13%
Purchase Price Percentage: 99.584375
Cut-off Date: June 1, 1997
Closing: June 25, 1997
Denominations: $25,000.00 and integral multiples
of $1.00 in excess thereof.
Title of Certificates: Class M-2F
----------
Amount of Certificates: $11,400,000 (approximate)
Pass-Through Rate: 7.38%
Purchase Price Percentage: 99.55%
Cut-off Date: June 1, 1997
Closing: June 25, 1997
Denominations: $25,000.00 and integral multiples
of $1.00 in excess thereof.
Title of Certificates: Class B-1F
----------
3
46
Amount of Certificates: $6,650,000 (approximate)
Pass-Through Rate: 7.68%
Purchase Price Percentage: 99.46875%
Cut-off Date: June 1, 1997
Closing: June 25, 1997
Denominations: $25,000.00 and integral multiples
of $1.00 in excess thereof.
Title of Certificates: Class A-1A
----------
Amount of Certificates: $241,800,000 (approximate)
Pass-Through Rate: LIBOR + .22%
Purchase Price Percentage: 99.775%
Cut-off Date: June 1, 1997
Closing: June 25, 1997
Denominations: $1,000.00 and integral multiples
of $1.00 in excess thereof.
Title of Certificates: Class M-1A
----------
Amount of Certificates: $25,575,000 (approximate)
Pass-Through Rate: LIBOR + .36%
Purchase Price Percentage: 99.65%
Cut-off Date: June 1, 1997
Closing: June 25, 1997
Denominations: $25,000.00 and integral multiples
of $1.00 in excess thereof.
Title of Certificates: Class M-2A
----------
Amount of Certificates: $25,575,000 (approximate)
Pass-Through Rate: LIBOR + .56%
4
47
Purchase Price Percentage: 99.6%
Cut-off Date: June 1, 1997
Closing: June 25, 1997
Denominations: $25,000.00 and integral multiples
of $1.00 in excess thereof.
Title of Certificates: Class B-1A
----------
Amount of Certificates: $17,050,000 (approximate)
Pass-Through Rate: LIBOR + .99%
Purchase Price Percentage: 99.55%
Cut-off Date: June 1, 1997
Closing: June 25, 1997
Denominations: $25,000.00 and integral multiples
of $1.00 in excess thereof.
Representative with respect to the Offered
Certificates: Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Location of Settlement: The offices of Xxxxxxx & Xxxxx L.L.P., 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
5
