1
EXHIBIT 10.31
================================================================================
HISTORICAL ADVANCE PURCHASE AGREEMENT
BETWEEN
AAMES CAPITAL CORPORATION
AS SELLER,
AND
STEAMBOAT FINANCIAL PARTNERSHIP I, L.P.
AS BUYER
DATED AS OF JUNE 17, 1999
================================================================================
2
HISTORICAL ADVANCE PURCHASE AGREEMENT
This HISTORICAL ADVANCE PURCHASE AGREEMENT, dated as of June 17,
1999 (as amended, supplemented or otherwise modified and in effect from time to
time, this "Agreement"), made by and between STEAMBOAT FINANCIAL PARTNERSHIP I,
L.P., a Delaware limited partnership, as buyer (the "BUYER"), and AAMES CAPITAL
CORPORATION, a California corporation, as seller (the "SELLER").
R E C I T A L S:
WHEREAS, in the ordinary course of the Seller's business, the
Seller enters into servicing agreements, which include the Scheduled Pooling and
Servicing Agreements (as defined below), pursuant to which the Seller acts as
servicer of portfolios of mortgage loans;
WHEREAS, pursuant to the Scheduled Pooling and Servicing
Agreements, the Seller has made Historical Advances (as defined below) which,
subject to the terms and conditions of this Agreement, the Seller now wishes to
sell to the Buyer, and the Buyer wishes to purchase from the Seller, on the
Closing Date; and
WHEREAS, concurrently with the sale contemplated herein, each of
the Scheduled Pooling and Servicing Agreements are being supplemented to add the
Buyer as an additional limited servicer with respect to Historical Advances and
to provide for the direct payment by the trustee under each Scheduled Pooling
and Servicing Agreement to the Buyer with respect to such Historical Advances;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, and for good and sufficient consideration, the
parties hereto, intending to be legally bound, do hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Defined Terms. All capitalized terms used
herein and not otherwise defined herein shall have the meaning ascribed to them
in the Scheduled Pooling and Servicing Agreements, and, to the extent not
inconsistent therewith, in the Limited Partnership Agreement, and the following
capitalized terms shall have the following meanings:
"AFFILIATE" shall mean, with respect to a Person, any other
Person which directly or indirectly controls, is controlled by or is under
common control with, such Person. The term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
2
3
"BUSINESS DAY" shall mean any day other than (i) a Saturday or
Sunday or (ii) any other day on which banking institutions are authorized or
required by law, executive order or governmental decree to be closed in the
States of Delaware, New York or California.
"BUYER" shall have the meaning set forth in the recitals hereto.
"CERTIFICATE INSURER" shall mean the "Financial Guaranty
Insurer" or the "Certificate Insurer" as the case may be, in each case as
defined in each Scheduled Pooling and Servicing Agreement.
"CHIEF EXECUTIVE OFFICE" shall mean, with respect to the Seller
or the Buyer, the place where the Seller or the Buyer, as the case may be, is
located, within the meaning of Section 9-103(3)(d), or any analogous provision,
of the UCC, in effect in the jurisdiction whose Law governs the perfection of
the Buyer's ownership of any of the Historical Advances.
"CLOSING DATE" shall mean June 17, 1999.
"COLLECTION POLICY" shall mean the Seller's policies regarding
the collection and remittance of monies due under Historical Advances as
promptly as is reasonably practical and in accordance with the provisions of the
Scheduled Pooling and Servicing Agreements.
"CUT-OFF DATE" shall mean May 31, 1999.
"GAAP" shall mean generally accepted accounting principles in
the United States of America, applied on a consistent basis and applied to both
classification of items and amounts, and shall include, without limitation, the
official interpretations thereof by the Financial Accounting Standards Board,
its predecessors and successors.
"HISTORICAL ADVANCEs" shall mean, with respect to the Scheduled
Pooling and Servicing Agreements, all Monthly Advances and Servicing Advances
made by the Servicer, including all rights to repayment and reimbursement with
respect thereto, which remain unreimbursed as of the Cut-off Date, having an
aggregate balance of $14,961,401.26 as of the Cut-off Date, and the proceeds
thereof, as defined in the Relevant UCC, as listed on Schedule 1 hereto.
Historical Advances shall not include unreimbursed Monthly Advances and
Servicing Advances made under Scheduled Pooling and Servicing Agreements prior
to the Cut-off Date which are set forth on Annex A to Schedule 1 hereto.
"INDEMNIFIED PARTIES" shall have the meaning specified in
Section 7.1 hereof.
"LAW" shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or
award of any Official Body.
"LIEN", in respect of the property of any Person, shall mean any
ownership interest of any other Person, any mortgage, deed of trust,
hypothecation, pledge, lien, security interest, financing statement, or charge
or other encumbrance or security arrangement of any nature whatsoever,
including, without limitation, any conditional sale or title retention
3
4
arrangement, and any assignment, deposit arrangement, consignment or lease
intended as, or having the effect of, security.
"LIMITED PARTNERSHIP AGREEMENT" shall mean the Limited
Partnership Agreement of Steamboat Financial Partnership I, L.P., dated as of
June 10, 1999.
"LIMITED PARTNERSHIP INTEREST" shall mean the limited
partnership interest in the Buyer, conveyed to the Seller by the Buyer on the
Closing Date, as set forth in Schedule A to the Limited Partnership Agreement.
"OFFICIAL BODY" shall mean any government or political
subdivision or any agency, authority, bureau, central bank, commission,
department or instrumentality of either, or any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic.
"OUTSTANDING BALANCE" of any Historical Advance shall mean, at
any time, the then outstanding amount thereof.
"PERSON" shall mean an individual, corporation, limited
liability company, partnership (general or limited), trust, business trust,
unincorporated association, joint venture, joint-stock company, Official Body or
any other entity of whatever nature.
"PURCHASE" shall mean the purchase by the Buyer from the Seller
of an undivided ownership interest in the Historical Advances pursuant to
Sections 2.1 and 2.2 hereof.
"PURCHASE PRICE" shall have the meaning specified in Section
2.2(c) hereof.
"RECORDS" shall mean correspondence, memoranda, computer
programs, tapes, discs, papers, books or other documents or transcribed
information of any type whether expressed in ordinary or machine readable
language.
"RELEVANT UCC" shall mean the UCC as in effect in the State of
California and in the jurisdiction whose Law governs the perfection of the
Buyer's ownership interests in the Historical Advances.
"REPURCHASE EVENT" shall mean, with respect to any Historical
Advance sold by the Seller to the Buyer pursuant to this Agreement, either (i)
any representation or warranty made by the Seller in Section 3.2 of this
Agreement with respect to such Historical Advance proves to have been false or
misleading; or (ii) the failure of the Buyer to have a perfected ownership
interest in such Historical Advance, free and clear of any Lien imposed by or in
respect of Seller.
"RESPONSIBLE OFFICER" shall mean, with respect to the Seller or
the Buyer, the chief executive officer, chief financial officer, or treasurer of
such Person and any other Person designated as a Responsible Officer by any such
officers, identified on the List of Responsible Officers attached as Exhibit D
hereto (as such list may be amended or supplemented from time to time) and
agreed to by the Seller and Buyer.
4
5
"SCHEDULED POOLING AND SERVICING AGREEMENTS" shall mean,
collectively, those pooling and servicing agreements described on Schedule 2
attached hereto to which the Seller is a party, pursuant to which the Seller
acts as the servicer of portfolios of mortgage loans, or by which Seller's
servicing obligations are governed. For all purposes of this Agreement, the term
"Scheduled Pooling and Servicing Agreements" shall include the Scheduled
Supplement thereto, and any and all instruments, agreements, invoices or other
writings, which gives rise to or otherwise evidence any of the Historical
Advances.
"SCHEDULED SUPPLEMENTS" shall mean, collectively, those
supplements, dated as of the date hereof, to each Scheduled Pooling and
Servicing Agreement.
"SCHEDULED TRUSTEE" shall mean each "Trustee" under each
Scheduled Pooling and Servicing Agreement.
"SELLER" shall have the meaning set forth in the recitals
hereto.
"UCC" shall mean, with respect to any jurisdiction, the Uniform
Commercial Code, or any successor statute, or any comparable law, as the same
may from time to time be amended, supplemented or otherwise modified and in
effect in such jurisdiction.
SECTION 1.2 Interpretation and Construction. Unless the context
of this Agreement otherwise clearly requires, references to the plural include
the singular, the singular the plural and the part the whole. References in this
Agreement to "determination", "determine" and "determined" by the Buyer shall be
conclusive absent manifest error and include good faith estimates by the Buyer
(in the case of quantitative determinations), and the good faith belief of the
Buyer (in the case of qualitative determinations). The words "hereof", "herein",
"hereunder" and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. Unless otherwise
stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding." The
section and other headings contained in this Agreement are for reference
purposes only and shall not control or affect the construction of this Agreement
or the interpretation hereof in any respect. Section, subsection and exhibit
references are to this Agreement unless otherwise specified. As used in this
Agreement, the masculine, feminine or neuter gender shall each be deemed to
include the others whenever the context so indicates. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP. Terms
not otherwise defined herein which are defined in the UCC as in effect in the
State of California on the date hereof shall have the respective meanings
ascribed to such terms therein unless the context otherwise clearly requires.
ARTICLE II
SALES AND TRANSFERS; SETTLEMENTS
SECTION 2.1 General Terms. On the terms and conditions
hereinafter set forth, on the Closing Date, the Seller shall sell to the Buyer,
and the Buyer shall purchase from the
5
6
Seller, without recourse, except as specifically set forth herein, all right,
title and interest of the Seller in, to and under the Historical Advances.
SECTION 2.2 Purchase and Sale.
(a) The Seller hereby irrevocably sells, sets over, assigns,
transfers and conveys to the Buyer and its successors and assigns, without
recourse, except as specifically set forth herein, and the Buyer hereby accepts,
purchases and receives from the Seller, all of the Seller's right, title, and
interest in and to the Historical Advances, together with all monies due or to
become due in respect thereof.
(b) The purchase price (the "PURCHASE PRICE") for the
Historical Advances shall be $12,717,191.07, plus the Limited Partnership
Interest. The Buyer shall pay and transfer to the Seller on the Closing Date the
cash portion of the Purchase Price, by wire transfer of immediately available
funds and shall create the Limited Partnership Interest in favor of Seller.
(c) The Purchase shall be made, and the Purchase Price paid,
on the Closing Date; provided that all conditions precedent to the Purchase
specified in Section 4.1 shall have been satisfied.
SECTION 2.3 Intended as Sale.
(a) It is the intention of the parties hereto that the
Purchase shall constitute a sale and assignment, which sale and assignment shall
be absolute, irrevocable and without recourse except as specifically provided
herein and shall provide the Buyer with the full benefits of ownership of the
Historical Advances. In the event that the Purchase is deemed by a court
contrary to the express intent of the parties to constitute a pledge rather than
a sale and assignment of the Historical Advances, the Buyer shall be treated as
having a first-priority, perfected security interest in and to, and lien on, the
Historical Advances. The possession by the Buyer or its agent of notes and such
other goods, money or documents related thereto, and the filing of Form UCC-1,
shall be deemed to be "possession by the secured party" and "perfection by
filing", respectively, for purposes of perfecting such security interest
pursuant to the Relevant UCC. The sale and conveyance hereunder of the
Historical Advances does not constitute an assumption by the Buyer or its
successors and assigns of any obligations of the Seller to any Person in
connection with the Historical Advances or under any Scheduled Pooling and
Servicing Agreement or any other agreement or instrument relating to the
Historical Advances.
(b) In connection with the Purchase, and to reflect the sale
of the Historical Advances by the Seller, the Seller agrees to record and file
on or prior to the Closing Date, at its own expense, financing statements with
respect to the Historical Advances, suitable to reflect the transfer of accounts
and general intangibles (each as defined in Article 9 of the Relevant UCC) and
meeting the requirements of applicable state Law in such manner and in such
jurisdictions as are necessary to perfect the sale, transfer and assignment of
the Historical Advances from the Seller to the Buyer, and to deliver
file-stamped copies of such financing statements or other evidence of such
filing satisfactory to the Buyer on the Closing Date or the day thereafter. In
addition to, and without limiting the foregoing, the Seller shall, upon the
request of the Buyer, in
6
7
order to accurately reflect this transaction, execute and file such financing or
continuation statements or amendments thereto or assignments thereof (as
permitted pursuant to Section 8.9 hereof) as may be reasonably requested by the
Buyer.
(c) The Seller shall maintain its books and records,
including but not limited to any computer files and master data processing
records, so that such records that refer to Historical Advances sold hereunder
shall indicate clearly that the Seller's right, title and interest in such
Historical Advances has been sold to the Buyer. Indication of the Buyer's
interest in Historical Advances shall be deleted from or modified on the
Seller's records when, and only when, the Historical Advances shall have been
paid in full or the Buyer's interest in such Historical Advances shall have been
repurchased or repaid by the Seller hereunder.
SECTION 2.4 Protection of Ownership of the Buyer.
(a) The Seller agrees that from time to time, at its
expense, it shall promptly execute and deliver all additional instruments and
documents and take all additional action that the Buyer may reasonably request
in order to perfect the interests of the Buyer in, to and under, or to protect,
the Historical Advances, or to enable the Buyer to exercise or enforce any of
its rights or remedies hereunder. To the fullest extent permitted by applicable
Law, the Buyer and its successor and assigns shall be permitted to sign and file
continuation statements and amendments thereto without the Seller's signature if
the Seller shall have failed to sign such continuation statements, amendments or
assignments within five (5) Business Days after receipt of a request for such
execution from the Buyer. The Seller hereby irrevocably consents to Buyer's
execution in Seller's name of continuation statements, amendments or
assignments.
(b) At any reasonable time and from time to time at the
Buyer's reasonable request and upon seven days' prior notice to the Seller, for
so long as Seller is the Servicer under the Scheduled Pooling and Servicing
Agreements, the Seller shall permit such Person as the Buyer may designate to
conduct audits or visit and inspect the Chief Executive Office of the Seller to
examine the Records, internal controls and procedures maintained by the Seller
with respect to the Historical Advances and take copies and extracts therefrom,
and to discuss the Seller's affairs with its officers, employees and, upon
notice to the Seller, independent accountants. The Seller hereby authorizes such
officers, employees and independent accountants to discuss with the Buyer or its
designee the affairs of the Seller. Any audit provided for herein shall be
conducted in accordance with Seller's rules respecting safety and security on
its premises and without materially disrupting operations.
(c) If the Seller shall receive any payments with respect to
Historical Advances, the Seller shall hold such payments in trust and shall pay
such amounts to the applicable Scheduled Trustee in accordance with the terms of
the applicable Scheduled Pooling and Servicing Agreements.
(d) The Buyer shall have the right to do all such acts and
things as it may deem reasonably necessary to protect its interests hereunder,
including, without limitation, confirmation and verification of the existence,
amount and status of the Historical Advances.
7
8
SECTION 2.5 Mandatory Repurchase Under Certain Circumstances.
(a) The Seller shall promptly repurchase from the Buyer all
of the Historical Advances for a repurchase price equal to the aggregate
Outstanding Balance of all of the Historical Advances, if, at any time, the
Buyer shall cease to have a perfected ownership interest in all of the
Historical Advances purchased hereunder, free and clear of any Lien imposed by
or in respect of Seller, or if any of the representations or warranties made by
the Seller in Sections 3.1(b), (c), (f) and (i) prove to have been false or
misleading in any material respect as of the date on which they were made,
except that, with respect to the representations and warranties in Section
3.1(f), Seller shall be obligated to repurchase the Historical Advances as
provided herein only if the failure of such representation and warranty results
in any Form UCC-1 filed with respect to the Historical Advances not having been
filed in a location effective to perfect a security interest (with respect to
general intangibles) against the Seller under the Relevant UCC.
(b) If a Repurchase Event occurs with respect to any
particular Historical Advance, the Seller shall promptly repurchase such
Historical Advance from the Buyer for a purchase price equal to the then
Outstanding Balance of such Historical Advance.
(c) Each of the Seller and the Buyer shall promptly notify
the other if it becomes aware of or receives notice of any fact or circumstance
that could or would cause the Seller to be obligated to repurchase any
Historical Advance pursuant to this Section 2.5 or any Historical Advance is not
otherwise recoverable. The repurchase price of any Historical Advances purchased
hereunder shall be deposited by Seller into an account designated by Buyer
within two (2) Business Days of Buyer notifying Seller that a Repurchase Event
has occurred, or of Seller becoming aware that such Repurchase Event has
occurred.
(d) Upon receipt by the Buyer of the Outstanding Balance of
any Historical Advance required to be repurchased by the Seller pursuant to this
Section 2.5, the Buyer shall automatically and without further action, be deemed
to sell, transfer, assign, set-over and otherwise convey to the Seller, without
recourse, representation or warranty, all the right, title and interest of the
Buyer in and to such Historical Advance and all monies due or to become due with
respect thereto; and such repurchased Historical Advance shall be treated by the
Buyer as collected in full as of the date on which it was transferred. The Buyer
shall execute such documents and instruments of transfer or assignment and take
such other actions as shall reasonably be requested by the Seller to effect the
conveyance of such Historical Advance and all monies due or to become due with
respect thereto, pursuant to this Section 2.5. Promptly following any such
repurchase, the Seller shall update Schedule 1 to remove therefrom such
repurchased Historical Advance, and deliver the same to the Buyer as so updated.
SECTION 2.6 Transfers by Buyer. The Seller acknowledges and
agrees that the Buyer may sell, assign, encumber or otherwise dispose of the
Historical Advances.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
8
9
SECTION 3.1 Representations and Warranties of Seller. The Seller
hereby represents and warrants to the Buyer on and as of the Closing Date that:
(a) Organization and Qualification. The Seller is a
corporation duly organized, validly existing and in good standing under the Laws
of its jurisdiction of incorporation. The Seller is duly qualified to do
business as a foreign corporation in good standing in each jurisdiction in which
the ownership of its properties or the nature of its activities (including
transactions giving rise to Historical Advances), or both, requires it to be so
qualified or, if not so qualified, the failure to so qualify would not have a
material adverse effect on its financial condition or results of operations.
(b) Authority. The Seller has the corporate power and
authority to execute and deliver this Agreement, to make the sales provided for
herein and to perform its obligations under this Agreement.
(c) Execution and Binding Effect. This Agreement has been
duly executed and delivered by the Seller and, assuming the due and valid
execution and delivery hereof by the Buyer, constitutes the legal, valid and
binding obligation of the Seller, enforceable against the Seller in accordance
with its terms, except as the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization or other similar Laws of general
application relating to or affecting the enforcement of creditors' rights
generally or by general principles of equity and will vest absolutely and
unconditionally in the Buyer a valid undivided ownership interest in the
Historical Advances purported to be assigned hereby, subject to no Liens
whatsoever. Upon the filing of the necessary financing statements under the UCC
or under applicable Law as in effect in the jurisdiction whose Law governs the
perfection of the Buyer's ownership interests in the Historical Advances, the
Buyer's ownership interests therein will be perfected under Article 9 of such
UCC or under applicable Law, prior to and enforceable against all creditors of
and purchasers from the Seller and all other Persons whatsoever (other than the
Buyer and its successors and assigns).
(d) Authorizations and Filings. No authorization, consent,
approval, license, exemption or other action by, and no registration,
qualification, designation, declaration or filing with, any Official Body is or
will be necessary or, in the opinion of the Seller, advisable in connection with
the execution and delivery by the Seller of this Agreement, the consummation by
the Seller of the transactions herein contemplated or the performance by the
Seller of or the compliance by the Seller with the terms and conditions hereof,
to ensure the legality, validity or enforceability hereof, or to ensure that the
Buyer will have a valid undivided ownership interest in and to the Historical
Advances which is perfected and prior to all other Liens (including competing
ownership interests), other than the filing of financing statements under the
UCC in the jurisdiction of the Seller's Chief Executive Office.
(e) Absence of Conflicts. Neither the execution and delivery
by the Seller of this Agreement, nor the consummation by the Seller of the
transactions herein contemplated, nor the performance by the Seller of or the
compliance by the Seller with the terms and conditions hereof, will (i) violate
any Law or (ii) conflict with or result in a breach of or a (with due notice
9
10
or lapse of time or both) default under (A) the Certificate of Incorporation or
By-laws of the Seller or (B) any agreement or instrument, including, without
limitation, any and all indentures, debentures, loans, credit agreements or
other agreements to which the Seller is a party or by which it or any of its
properties (now owned or hereafter acquired) may be subject or bound (including,
without limitation, the Scheduled Pooling and Servicing Agreements). The Seller
has not entered into any agreement with any Person prohibiting, restricting or
conditioning the assignment of any portion of the Historical Advances.
(f) Location of Chief Executive Office, etc. As of the date
hereof: (i) the Seller's Chief Executive Office is located at 000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, 00000; (ii) the offices where the Seller keeps
all of its material Records are listed on Exhibit B hereto; and (iii) the Seller
has, within the last 5 years, operated only under the trade names identified in
Exhibit C hereto, and, within the last 5 years, has not changed its name, merged
or consolidated with any other corporation with assets over $1,000,000 or been
the subject of any proceeding under Xxxxx 00, Xxxxxx Xxxxxx Code (Bankruptcy),
except as disclosed in Exhibit C hereto.
(g) Accurate and Complete Disclosure. No information
furnished in writing by the Seller to the Buyer pursuant to or in connection
with this Agreement is false or misleading in any material respect as of the
date of which such information was furnished (including by omission of material
information necessary to make such information not misleading).
(h) No Proceedings. There are no proceedings or
investigations pending, or to the knowledge of the Seller threatened, before any
Official Body (A) asserting the invalidity of this Agreement, (B) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement, or (C) seeking any determination or ruling that might materially and
adversely affect (i) the performance by the Seller of its obligations under this
Agreement or (ii) the validity or enforceability of this Agreement, the
Scheduled Pooling and Servicing Agreements, or any of the Historical Advances.
(i) Litigation. No injunction, decree or other decision has
been issued or made by any Official Body that prevents, and to the knowledge of
the Seller, no threat by any Person has been made to attempt to obtain any such
decision that would have a material adverse impact on the value of the
Historical Advances or the performance of the Seller's obligations and the
exercise of its rights under the Scheduled Pooling and Servicing Agreements, or
that would materially adversely affect the collectibility of the Historical
Advances as a whole, except as set forth on Exhibit A hereto.
(j) Taxes. No Lien has been filed against the Seller on all
or any material portion of its property or assets in respect of any unpaid
federal, state or local taxes.
(k) Books and Records The Seller has clearly indicated on
its books and records (including any computer files) that the Historical
Advances have been sold to the Buyer. For accounting and tax purposes, the
Seller shall treat the sale of the Historical Advances hereunder as a sale. The
Seller maintains at one or more of the offices listed on Exhibit B hereto the
complete records for the Historical Advances.
10
11
(l) Investment Company. The Seller is not an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(m) No Fraudulent Conveyance. The transactions contemplated
by this Agreement are being consummated by the Seller in furtherance of the
Seller's ordinary business, with no contemplation of insolvency and with no
intent to hinder, delay or defraud any of its present or future creditors. By
its receipt of the Purchase Price hereunder, the Seller shall have received
reasonably equivalent value for the Historical Advances sold or otherwise
conveyed to the Buyer under this Agreement.
(n) Solvency. The Seller is solvent and will not be rendered
insolvent by the transactions contemplated herein.
SECTION 3.2 Representations and Warranties of the Seller With
Respect to the Sale of the Historical Advances. By selling Historical Advances
to the Buyer on the Closing Date, the Seller represents and warrants to the
Buyer as of the Closing Date (in addition to its other representations and
warranties contained herein or made pursuant hereto) that:
(a) Scheduled Pooling and Servicing Agreements. All of the
Scheduled Pooling and Servicing Agreements are in full force and effect and the
Seller as Servicer thereunder has not been terminated. Other than each
Certificate Insurer's right to terminate the applicable Scheduled Pooling and
Servicing Agreements based on Seller's failure to achieve certain delinquency
and/or loss targets, no event has occurred that would give any party to any
Scheduled Pooling and Servicing Agreement the right (including with notice or
lapse of time or both) to terminate the Seller for cause as the Servicer or
Sub-Servicer under any Scheduled Pooling and Servicing Agreement, and the Seller
does not have actual knowledge of any pending or threatened action to terminate
the Seller as Servicer or Sub-Servicer under any of the Scheduled Pooling and
Servicing Agreements.
(b) Assignment. This Agreement vests in the Buyer all of the
right, title and interest in and to the Historical Advances, and constitutes a
valid sale of the Historical Advances, enforceable against, and creating an
interest prior in right to, all creditors of and purchasers from the Seller.
(c) No Liens. Each Historical Advance is owned by the Seller
free and clear of any Lien (except any Lien of the Trust under the relevant
Scheduled Pooling and Servicing Agreement), except as provided herein, and is
not subject to any dispute or other adverse claim, except as provided herein.
When the Buyer purchases the Historical Advances, it shall acquire ownership of
the Historical Advances, free and clear of any Lien, except as provided herein.
(d) Filings. On or prior to the Closing Date, all financing
statements and other documents required to be recorded or filed in order to
perfect and protect the Historical Advances against all creditors of, and
purchasers from, the Seller and all other Persons whatsoever have been duly
filed in each filing office necessary for such purpose and all filing fees and
taxes, if any, payable in connection with such filings have been paid in full
and all
11
12
documents required to be filed to release any Liens on the Historical Advances
shall have been filed.
(e) Collection Policy. The Seller has complied in all
material respects with the Collection Policy in regard to each Historical
Advance and the related Scheduled Pooling and Servicing Agreement. The Seller
has not extended or modified the terms of any Historical Advance or the related
Scheduled Pooling and Servicing Agreement except in accordance with the
Collection Policy.
(f) Bona Fide Historical Advance. Each Historical Advance is
an obligation arising out of the making of a Monthly Advance or Servicing
Advance by the Seller or a predecessor servicer, in its capacity as a servicer
of a portfolio of mortgage loans, pursuant to a Scheduled Pooling and Servicing
Agreement. Each Historical Advance relates to a Monthly Advance or Servicing
Advance that has been made in accordance with the terms of the related Scheduled
Pooling and Servicing Agreement. The Seller has no knowledge of any fact that
has led it to expect that such Historical Advance will not be fully recoverable
when the related mortgage loan is brought current or is liquidated and the
Seller had a good faith basis, at the time each Historical Advance was made, to
believe that such Historical Advance would be fully recoverable. As of the
Cut-off Date, the Seller has not received any payments in respect of the
Historical Advances which have not been attributed to the Historical Advances.
(g) Accuracy of Schedule. The information set forth in
Schedule 1 (including Annex A to Schedule 1) and in Schedule 2 hereto with
respect to the Historical Advances and the Scheduled Pooling and Servicing
Agreements is true and correct in all material respects as of the date hereof.
(h) Creditor Approval. The Seller has obtained from each
Person that may have an interest in the Historical Advances (i) all approvals
that are necessary to sell and assign the Historical Advances in the manner
contemplated by this Agreement and (ii) releases of any security interests in
the Historical Advances.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1 Conditions to Closing. On the Closing Date, as a
condition precedent to the Buyer's obligations hereunder, all of the
representations and warranties of the Seller made herein shall be true and
correct, the Seller shall not be in breach of any of the agreements made herein,
and the Seller shall deliver to the Buyer the following documents and
instruments, all of which shall be in form and substance acceptable to the
Buyer:
(a) A copy of the resolutions of the Board of Directors of
the Seller, certified as of June 10, 1999 by its secretary or assistant
secretary authorizing the execution, delivery and performance of this Agreement
by the Seller and approving the transactions contemplated hereby;
12
13
(b) The Certificate of Incorporation of the Seller,
certified as of a date reasonably near the Closing Date by the Secretary of
State or other similar official of the Seller's jurisdiction of incorporation;
(c) A good standing certificate for the Seller issued by the
Secretary of State or other similar official of the Seller's jurisdiction of
incorporation, certificates of qualification as a foreign corporation issued by
the Secretaries of State or other similar officials of each jurisdiction where
such qualification is material to the transactions contemplated by this
Agreement and certificates of the appropriate state official in each
jurisdiction specified by the Buyer as to the absence of any tax Liens against
the Seller under the Laws of such jurisdiction, each such certificate to be
dated a date reasonably near the Closing Date;
(d) A certificate of the secretary or an assistant secretary
of the Seller dated as of June 10, 1999, certifying (i) the names and signatures
of the officers authorized on the Seller's behalf to execute, and the officers
and other employees authorized to perform, this Agreement by the Seller and (ii)
a copy of the Seller's By-laws;
(e) Executed copies of proper financing statements (Form
UCC-l) naming the Seller as seller/debtor in respect of the Historical Advances,
and the Buyer, as the purchaser/secured party, together with evidence of filing
thereof in the appropriate jurisdictions; or other similar instruments or
documents as may be necessary or, in the opinion of the Buyer, desirable under
the UCC of all appropriate jurisdictions to evidence or perfect the Buyer's
ownership interests in all of the Historical Advances;
(f) Executed copies of proper financing statements (Form
UCC-3), if any, necessary under the Laws of all appropriate jurisdictions to
release all security interests and other Liens or rights of any person in
Historical Advances previously granted by the Seller (except the Lien of a Trust
under the relevant Scheduled Pooling and Servicing Agreement);
(g) Certified copies of lien search reports dated a date
reasonably near the Closing Date listing all effective financing statements that
name the Seller (under its present name and any previous name or any trade names
or "d.b.a." name) as debtor and which are filed in jurisdictions in which the
filings were made pursuant to paragraph (e) above, together with copies of such
financing statements (none of which shall cover any of the Historical Advances,
the Scheduled Pooling and Servicing Agreements or any related rights);
(h) A favorable opinion or opinions of the Seller, dated the
date hereof and addressed to the Buyer relating to corporate matters, legality
and validity of this Agreement, and a favorable opinion or opinions of O'Melveny
& Xxxxx LLP, counsel to the Seller, dated the date hereof and addressed to Buyer
relating to the characterization of the transfer of the Historical Advances in a
bankruptcy case as an absolute transfer, enforceability of this Agreement and of
the Scheduled Supplements, the perfection of the Buyer's ownership interests in
the Historical Advances and such other matters as the Buyer may reasonably
request;
(i) An officer's certificate dated the date hereof in a form
reasonably acceptable to the Buyer executed by a Responsible Officer of the
Seller to the effect that (i) all
13
14
representations and warranties are true and correct as of the Closing Date and
(ii) all terms, covenants agreements and conditions required to be complied with
or performed on or prior to the Closing Date have been complied with or
performed on or prior to the Closing Date;
(j) Executed copies of all of the Scheduled Pooling and
Servicing Agreements, certified as true, complete and correct by an incumbent
officer of the Seller, except as noted in a certificate of such officer;
(k) Copies of all Scheduled Supplements, executed by all
parties thereto; and
(l) A true, complete, and correct list (which shall be in
paper form and may also be in the form of a computer file or tape) of the
Historical Advances, each of which shall be identified by the related Scheduled
Pooling and Servicing Agreement, loan number and Outstanding Balance, in the
form of Schedule 1 to this Agreement.
ARTICLE V
COVENANTS
SECTION 5.1 Covenants of the Seller. At all times during the
term of this Agreement, unless the Buyer shall otherwise consent in writing:
(a) Enforceability of Obligations; Reimbursements. The
Seller shall take such actions as are reasonable and within its power to ensure
that, with respect to each Historical Advance, that Buyer will receive
reimbursements with respect to such Historical Advance as promptly as
practicable; provided however, that this subsection shall not constitute a
guarantee of payment or collection. The Seller shall enforce the right to
receive reimbursement for each Historical Advance against any and all parties to
a Scheduled Pooling and Servicing Agreement, if its usual and customary
procedures do not result in such reimbursement.
(b) Fulfillment of Obligations. The Seller shall duly
observe and perform, or cause to be observed or performed, all material
obligations and undertakings on its part to be observed and performed under or
in connection with this Agreement, the Collection Policies and the Scheduled
Pooling and Servicing Agreements; shall do nothing to impair the rights, title
and interest of the Buyer in and to the Historical Advances or the right or
ability of the Seller or the Buyer to realize thereon.
(c) Notice of Relocation. The Seller shall give the Buyer
thirty (30) days' prior written notice of any relocation of its Chief Executive
Office if, as a result of such relocation, the applicable provisions of the UCC
of any applicable jurisdiction or other applicable Laws would require the filing
of any amendment of any previously filed financing statement or continuation
statement or of any new financing statement. The Seller will at all times
maintain its Chief Executive Office within a jurisdiction in the United States
in which Article 9 of the UCC (1972 or later revision) is in effect as of the
date hereof or the date of any such relocation.
14
15
(d) Further Information. The Seller shall furnish or cause
to be furnished to the Buyer such other information as promptly as practicable,
and in such form and detail, as the Buyer may reasonably request.
(e) Fees, Taxes and Expenses. The Seller shall pay all
filing fees, stamp taxes, other taxes and expenses that are incurred or assessed
on account of or arise out of this Agreement and the documents and transactions
entered into pursuant to this Agreement.
SECTION 5.2 Negative Covenants of the Seller. At all times
during the term of this Agreement, unless the Buyer shall otherwise consent in
writing:
(a) No Changes. The Seller shall not change its name,
identity or corporate structure in any manner which would make any financing
statement or continuation statement filed in connection with this Agreement or
the transactions contemplated hereby misleading within the meaning of Section
9-402(7) of the UCC of any applicable jurisdiction or other applicable Laws
unless it shall have given the Buyer at least thirty (30) days' prior written
notice thereof and unless prior thereto it shall have caused such financing
statement or continuation statement to be amended or a new financing statement
to be filed such that such financing statement or continuation statement would
not be misleading.
(b) Collection Policy. The Seller shall not make, allow or
consent to any material change in its Collection Policy without prior written
notification to the Buyer.
ARTICLE VI
TERMINATION
SECTION 6.1 Termination. The Seller's obligations under this
Agreement shall continue in full force and effect until all Historical Advances
have been paid or liquidated; provided, however, that the indemnification and
payment provisions set forth in Article VII hereof shall be continuing and shall
survive termination of this Agreement.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 Indemnity.
(a) The Seller agrees to indemnify, defend and save harmless
the Buyer and any of its successors or permitted assignees (each, an
"INDEMNIFIED PARTY" and collectively, the "INDEMNIFIED PARTIES"), other than for
the Indemnified Party's own gross negligence or willful misconduct, forthwith on
demand, from and against any and all losses, claims, damages, liabilities, costs
and expenses (including, without limitation, all reasonable attorneys' fees and
expenses, expenses incurred by an Indemnified Party (or any successors thereto)
and expenses of settlement, litigation or preparation therefor) which any
Indemnified Party may incur or which may be asserted against any Indemnified
Party by any Person (whether on its own behalf or derivatively on behalf of the
Seller) arising from or incurred in connection with (i) any breach of
15
16
a representation, warranty or covenant by the Seller made or deemed made
hereunder or in connection herewith or the transactions contemplated hereby or
(ii) any action taken or, if the Seller is otherwise obligated to take action,
failed to be taken, by the Seller with respect to the Historical Advances or any
of its obligations hereunder including, without limitation, the Seller's failure
to comply with an applicable Law or regulation
(b) Promptly upon receipt by any Indemnified Party under
this Section 7.1 of notice of the commencement of any suit, action, claim,
proceeding or governmental investigation against such Indemnified Party, such
Indemnified Party shall, if a claim in respect thereof is to be made against the
Seller hereunder, notify the Seller in writing of the commencement thereof. The
Seller may participate in and assume the defense and settlement of any such
suit, action, claim, proceeding or investigation at its expense, and no
settlement thereof shall be made without the approval of the Seller and the
Indemnified Party. The approval of either party will not be unreasonably
withheld or delayed.
(c) Each Indemnified Party shall use its good faith efforts
to mitigate, reduce or eliminate any losses, expenses or claims for
indemnification.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Survival. The indemnification and payment provisions
of Article VII shall be continuing and shall survive any termination of this
Agreement, subject to applicable statutes of limitation; provided, however, that
any such indemnification or payment claim must be presented to the Seller within
thirty (30) Business Days after the Person making such claim receives notice or
otherwise becomes aware of such claim, provided, further, however, that any
failure to give such notice shall not prejudice the rights of any Indemnified
Party except to the extent Seller is actually prejudiced by such failure to give
notice.
SECTION 8.2 Amendments. Any provision of this Agreement may be
waived or amended only in a writing signed by the parties hereto.
SECTION 8.3 Notices. Except as provided below, all
communications and notices provided for hereunder shall be in writing (including
bank wire, telecopy or electronic facsimile transmission or similar writing) and
shall be given to the other party at its address or telecopy number set forth
hereunder or at such other address or telecopy number as such party may
hereafter specify for the purposes of notice to such party. Each such notice or
other communication shall be effective if given by facsimile, when such
facsimile is transmitted to the facsimile number specified in this Section 8.3
and the appropriate written confirmation is received or, if given by any other
means, when received at the address specified in this Section 8.3. Each party
further agrees to deliver promptly to the other party a written confirmation of
each telephonic notice signed by an authorized officer of the Seller. However,
the absence of such confirmation shall not affect the validity of such notice.
If to the Buyer:
16
17
Steamboat Financial Partnership I, L.P.
c/o Random Properties Acquisition Corp. IV
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxxx, Esq.
General Counsel
c/o Steamboat Financial, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Seller:
Aames Capital Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx, CFO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
General Counsel
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SECTION 8.4 Governing Law; Submission to Jurisdiction; Waiver of
Jury Trial; Process Agent. (a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Seller and the Buyer
hereby submit to the nonexclusive jurisdiction of courts of the State of New
York located in the Borough of Manhattan and the United States District Court
for the Southern District of New York for purposes of adjudicating any claim or
controversy arising in connection with this Agreement or any of the transactions
contemplated hereby. The Seller and the Buyer hereby irrevocably waive, to the
fullest extent they may lawfully do so, any objection which they may
17
18
now or hereafter have to the laying of the venue of any such proceeding brought
in such a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum. Nothing in this Section 8.4 shall
affect the right of any Person to bring any action or proceeding against the
Seller or the Buyer or their respective properties in the courts of other
jurisdictions. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO ANY
RELATIONSHIP ESTABLISHED IN CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY
DISPUTES RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
(b) THE SELLER HEREBY IRREVOCABLY DESIGNATES CT CORPORATION
AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, FOR AND ON BEHALF OF IT,
SERVICE OF PROCESS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT. THE SELLER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO CT
CORPORATION, 0000 XXXXXXXX, XXX XXXX, XXX XXXX, XX TO ITS ADDRESS FOR NOTICES IN
SECTION 8.3, WHICH SERVICE SHALL BECOME EFFECTIVE THREE (3) BUSINESS DAYS AFTER
DEPOSIT IN THE MAIL AND SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE BUYER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE SELLER IN ANY OTHER JURISDICTION.
SECTION 8.5 No Implied Waiver; Cumulative Remedies. No course of
dealing and no delay or failure of the Buyer in exercising any right, power or
privilege under this Agreement shall affect any other or future exercise thereof
or the exercise of any other right, power or privilege; nor shall any single or
partial exercise of any such right, power or privilege or any abandonment or
discontinuance of steps to enforce such a right, power or privilege preclude any
further exercise thereof or of any other right, power or privilege. The rights
and remedies of the Buyer under this Agreement are cumulative and not exclusive
of any rights or remedies which the Buyer would otherwise have.
SECTION 8.6 No Discharge. The obligations of the Seller under
this Agreement shall be absolute and unconditional and shall remain in full
force and effect without regard to, and shall not be released, discharged or in
any way affected by (a) any exercise or nonexercise of any right, remedy, power
or privilege under or in respect of this Agreement or applicable Law, including,
without limitation, any failure to set-off or release in whole or in part by the
Buyer of any balance of any deposit account or credit on its books in favor of
the Buyer or any waiver, consent, extension, indulgence or other action or
inaction in respect of any thereof, or (b) any other act or thing or omission or
delay to do any other act or thing which would operate as a discharge of the
Buyer as a matter of law.
18
19
SECTION 8.7 Prior Understandings. This Agreement sets forth the
entire understanding of the parties relating to the subject matter hereof and
thereof, and supersede all prior understandings and agreements, whether written
or oral with respect to the subject matter hereof and thereof.
SECTION 8.8 Successors and Assigns. This Agreement shall be
binding on the parties hereto and their respective successors and assigns;
provided, however, that the Seller may not assign any of its rights or delegate
any of its duties hereunder without the prior written consent of the Buyer. No
provision of this Agreement shall in any manner restrict the ability of the
Buyer to assign, participate, grant security interests in, or otherwise transfer
any portion of the Historical Advances owned by the Buyer. The Seller further
agrees that notwithstanding any claim, counterclaim, right of setoff or defense
which it may have against the Buyer due to a breach by the Buyer of this
Agreement or for any other reason, and notwithstanding the bankruptcy of the
Buyer or any other event whatsoever, the Seller's sole remedy shall be a claim
against the Buyer for money damages, and in no event shall the Seller assert any
claim on or any interest in the Historical Advances or take any action which
would reduce or delay receipt of collections with respect to the Historical
Advances.
SECTION 8.09 Severability; Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
Agreement. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable any other provision in
such jurisdiction or such provision in any other jurisdiction.
SECTION 8.10 Expenses. Seller shall pay Buyer's costs and
expenses reasonably incurred in connection with Buyer's negotiation,
preparation, execution and delivery of this Agreement, including the fees and
out-of-pocket expenses of Buyer's counsel, and Buyer's costs and expenses
incurred in seeking enforcement of any of Seller's obligations hereunder.
[Signature Page Follows]
19
20
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date first above set forth.
AAMES CAPITAL CORPORATION,
as Seller
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
STEAMBOAT FINANCIAL PARTNERSHIP I, L.P.
as Buyer
By: RANDOM PROPERTIES ACQUISITION
CORP. IV
its general partner
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
HISTORICAL ADVANCE PURCHASE AGREEMENT
20
21
EXHIBIT A
SCHEDULE OF LITIGATION
None
A-1
22
EXHIBIT B
SCHEDULE OF LOCATION OF RECORDS
Seller: 000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
B-1
23
EXHIBIT C
SCHEDULE OF CORPORATE NAMES,
TRADE NAMES OR ASSUMED NAMES AND SUBSIDIARIES
Corporate Name: Aames Capital Corp.
Trade Names: Aames Home Loan
Assumed Names: None
Subsidiaries: None
C-1
24
EXHIBIT D
LIST OF RESPONSIBLE OFFICERS
Responsible Officers of Seller: Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxx X. Van Deuren
Xxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxxx
Xxxxxxx Xxxxxx
Responsible Officers of Buyer: Xxxxxx X. XxXxxxxx
Xxxxxx Xxxxx III
Xxxxx Xxxxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx
D-1
25
Schedule 1
SCHEDULE OF HISTORICAL ADVANCES
(As of the Cut-off Date)
S1-1
26
Annex A to Schedule 1
Monthly Advances and Servicing Advances
Outstanding as of the Cut-Off Date
Excluded from Historical Advances
S1-2
27
Schedule 2
SCHEDULED POOLING AND SERVICING AGREEMENTS
----------------------------------------------------------------------------------------------
Series Effective Date Parties
----------------------------------------------------------------------------------------------
Series 1996-B 6/1/96 Aames Capital Corporation as Seller
& Servicer Bankers Trust Company of
California, N.A. as Trustee
----------------------------------------------------------------------------------------------
Series 1996-C 9/1/96 same as above
----------------------------------------------------------------------------------------------
S2-1
