1
EXHIBIT 1.1
AAMES CAPITAL CORPORATION
AND
THE UNDERWRITERS
UNDERWRITING AGREEMENT
FOR
AAMES MORTGAGE TRUSTS
MORTGAGE PASS-THROUGH CERTIFICATES,
ISSUABLE IN SERIES
MARCH 18, 1997
2
March 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.
On or prior to the date of issuance of the Certificates of any Series,
if specified in the Pricing Agreement, the Company will obtain one or more
certificate guaranty insurance policies (each a "Policy") issued by an
insurance provider specified in the Pricing Agreement (the "Insurer") which
will unconditionally and irrevocably guarantee for the benefit of the holders
of each Class of Certificates to be purchased pursuant to this Agreement, full
and complete payment of the amounts payable on the Certificates of the related
Series.
2
3
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 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)
(collectively, the "Class A Certificates") and (ii) a residual class (the
"Class R Certificates"). The Class A 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 Class A 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 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 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
3
4
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 Class
A 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 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
4
5
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, the
Indemnification Agreement dated as of the Execution Time (the
"Indemnification Agreement") among the Company, the Insurer and the
Underwriters, 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 Class A Certificates as described in the
Prospectus.
E. The execution and delivery by the Company of this
Agreement, the Indemnification 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 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
5
6
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,
this Agreement or the Indemnification Agreement or (ii) the business,
operations, results of operations, financial position, income,
properties or assets of the Company.
F. This Agreement and the Indemnification Agreement have
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
their respective 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 Class A 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 Class A 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 Class A
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.
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
6
7
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, the
Indemnification 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 Class A 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 Class A 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 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.
7
8
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 Class A 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 Class A Certificates of the
related Series, the Underwriters shall offer such Class A
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 Class A
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;
(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 Class A
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 Class A
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 1995, as
amended, 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 Class A Certificates or
distribution
8
9
of the Prospectus or Prospectus Supplement or
any Computational Materials or any other
offering material in relation to the Class A
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 Class A
Certificates and with the distribution of the
Prospectus or Prospectus Supplement or any
Computational Materials or any other offering
material in relation to the Class A
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 Class A Certificates or distribute the
Prospectus or Prospectus Supplement or any
Computational Materials or any other offering
material relating to the Class A 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 Class A Certificates. The
Company hereby agrees, subject to the terms and conditions hereof, to sell the
Class A 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 Class A
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 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 Class A 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 Class A Certificates will
9
10
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 Class A
Certificates that the purchase and sale of each other Class of Class A
Certificates occurs simultaneously.
The Company agrees to have the Class A 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 Class A
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 Class A 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 Class A 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 best 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 for the Class A 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 best 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
best 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
10
11
required to be contained in a post-effective amendment to the
Registration Statement, will use its best 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 Class A Certificates.
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 Class A 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 Class A 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 Class A 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.
11
12
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 Class A Certificates, (ii) the preparation of all documents
specified in this Agreement, (iii) any fees and expenses of the
Trustee, the Insurer and any other credit support provider (including
legal fees) that are not payable by or from the Trust, (iv) any
accounting fees and disbursements relating to the offering of Class A
Certificates, (v) any fees charged by rating agencies for rating the
Class A 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 Class A 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. 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 Class A
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 Class A 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 Class A
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)
12
13
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.
L. The Company will cause any ABS Term Sheets (as
defined in Section 9A hereof with respect of the Class A 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.
13
14
6. Conditions of the Underwriters' Obligation. The obligation of
the Underwriters to purchase and pay for the Class A 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.
B. The Underwriters shall have received the Pooling and
Servicing Agreement and the Class A 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.
14
15
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 Standard & Poor's Corporation, a division
of the XxXxxx-Xxxx Companies, Inc. ("S&P") Xxxxx'x Investors Service,
Inc. ("Xxxxx'x") and Xxxxx Investors Service, L.P. ("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.
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
15
16
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.
I. The Policy relating to the Class A Certificates of
such Series shall have been duly executed and issued at or prior to
the Closing Date and shall conform in all material respects to the
description thereof in the Prospectus.
J. The Underwriters shall have received a favorable
opinion of counsel to the Insurer, dated the Closing Date, in form
and substance satisfactory to the Underwriters and covering the
substantive matters referred to in Appendix C 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, the Insurer and public officials. Such opinion
may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto
other than the Insurer.
K. 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).
L. On or prior to the Closing Date there shall not have
occurred any downgrading, nor shall any notice have been given of (i)
any intended or potential downgrading or (ii) any review or possible
change in rating the direction of which has not been indicated, in
the rating accorded the Insurer's claims paying ability by any
"nationally recognized statistical rating organization" (as such term
is defined for purposes of the Exchange Act).
M. There has not occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business
16
17
or operations, since the Date of the Company's Recent Financial
Statements, of (i) the Company, its parent company or its
subsidiaries or (ii) the Insurer, that is in the Representative's
judgment material and adverse and that makes it in the
Representative's judgment impracticable to market the Class A
Certificates on the terms and in the manner contemplated in the
Prospectus.
N. The Underwriters and counsel for the Underwriters
shall have received copies of any separate opinions of counsel to the
Company or the Insurer supplied to the Trustee or any of S&P, Xxxxx'x
or Fitch relating to matters with respect to the Certificates or the
Policy, and such opinions shall be dated the Closing Date and
addressed to the Underwriters and upon which they may rely.
O. 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.
P. 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
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 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.
17
18
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 Class A Certificates and the
proposed purchase and sale of the Class A Certificates.
8. Indemnification and Contribution.
A. Regardless of whether any Class A 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 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
18
19
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 Class A 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 Class A 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 Class A 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.
B. Regardless of whether any Class A 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
19
20
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 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
20
21
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:
(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 Class A
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 Class A
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 Class A Certificates of the related
21
22
Series over the aggregate purchase price of the Class A Certificates
specified in the Pricing Agreement and the denominator of which is
(y) the Aggregate Resale Price of such Class A 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 Class A 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 Class A Certificates so purchased), determined on the
basis of such principal amounts, paid to the Underwriters by all
initial purchasers of the Class A 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 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
Class A 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
22
23
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 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
23
24
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 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
Class A 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 Class A 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
24
25
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. 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 mailed, delivered or
telegraphed and confirmed in writing to the Company at 0000 Xxxxxxxx Xxxxxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxxxx; with a copy
addressed to Xxxxxxx & Xxxxx L.L.P., 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxx
Xxxxx, Xxxxxxxxxx, X.X. 00000, Attention: Xxxxx X. Xxxxxxx III.
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 Class A 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
25
26
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.
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.
26
27
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 Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President - Finance
XXXXXXXXX, XXXXXX & 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
28
EXHIBIT A
March 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 March 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 March 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 Corportion ("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
29
(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
30
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
31
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 and the Indemnification 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
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, complied as to form in all material
respects with the requirements of the 1933 Act and the rules thereunder.
16. The execution and delivery of each of the
Underwriting Agreement, the Pricing Agreement and the Indemnification Agreement
has been duly authorized by all necessary corporate action of the Company and
each of the Underwriting Agreement, the Pricing Agreement and the
Indemnification Agreement has been duly executed and delivered by the Company;
the execution and delivery of the Letter Agreement has been duly authorized by
all necessary corporate action of AFC and the Letter Agreement has been duly
executed and delivered by AFC.
Appendix X-0
00
00. 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 execution and delivery of the Insurance and
Indemnity Agreement has been duly authorized by the Sponsor and the Insurance
and Indemnity Agreement has been duly executed and delivered by the Sponsor and
constitutes a valid, legal and binding agreement of the Sponsor, enforceable
against the Sponsor in accordance with its terms except (i) 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, and (ii) as the rights to indemnification or
contribution thereunder may be limited by federal or state securities laws.
19. The Class A 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.
20. The Class A Certificates and the Pooling and
Servicing Agreement conform in all material respects to the descriptions
thereof contained in the Prospectus.
21. 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.
22. The REMIC Pool 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 Class A 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 Residual Certificate 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 the 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. The REMIC Pool will
not 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 the REMIC Pool may, however, be subject to
Appendix A-3
34
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, the REMIC Pool may be subject to the minimum tax
imposed under the California Revenue and Taxation Code Sections specified
therein.
23. 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.
24. Neither the transfer of the Mortgage Loans to the
Trust, the issuance and sale of the Class A 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 Class A 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 Residual
Certificate, 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.
25. 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
Appendix A-4
35
information included or incorporated by reference therein, and the information
with respect to the Certificate Insurer, 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
FORM OF OPINION OF COUNSEL TO INSURER
1. The Insurer is a stock insurance company duly organized,
validly existing and authorized to conduct financial guaranty insurance
business under the laws of the State of New York.
2. The Policy, the Insurance and Indemnity Agreement and the
Indemnification Agreement (the "Agreements") have been duly authorized,
executed and delivered by the Insurer.
3. The Policy and the Agreements constitute valid and binding
obligations of the Insurer, enforceable against the Insurer in accordance with
their terms subject, as to the enforcement of remedies, bankruptcy, insolvency,
reorganization, rehabilitation, moratorium and other similar laws affecting the
enforceability of creditors' rights generally applicable in the event of the
bankruptcy or insolvency of the Insurer and to the application of general
principles of equity and subject, in the case of the Indemnification Agreement,
to principles of public policy limiting the right to enforce the
indemnification provision contained therein insofar as they relate to
indemnification for liabilities arising under applicable securities laws.
4. The Policy is exempt from registration under the 1933 Act.
5. Neither the execution or delivery by the Insurer of the Policy
or the Agreements, nor the performance by the Insurer of its obligations
thereunder, will conflict with any provision of the certificate of
incorporation or the by-laws of the Insurer or, to the best of such counsel's
knowledge, result in a breach of, or constitute a default under any agreement
or other instrument to which the Insurer is a party to which it or any of its
property is bound, or to the best of such counsel's knowledge, violate any
consent, order to decree applicable to the Insurer of any governmental or
regulatory body, administrative agency, court or arbitrator having jurisdiction
over the Insurer (except that in the published opinion of the Commission the
indemnification provisions of the Indemnification Agreement, insofar as they
relate to indemnification or liabilities arising under the 1933 Act, are
against public policy as expressed in the 1933 Act and are therefore
unenforceable).
In addition, please be advised such counsel has reviewed the
description of the Insurer under the caption "Certificate Insurer" in the
Prospectus Supplement (the "Offering Document") of the Company with respect to
the securities. The information provided in the Offering Document with respect
to the Insurer is limited and does not purport to provide the scope of
disclosure required to be included in a prospectus with respect to a registrant
under the 1933 Act in connection with the public offer and sale of securities
of such registrant. Within such limited scope of disclosure, however, there
has not come to such counsel's attention any information which would cause such
counsel to believe that the description of the Insurer referred to above, as of
the date of the Offering Document or as of the date of such opinion, contained
or contains any untrue statement of a material fact or omitted or omits to
state a material fact necessary to
Appendix C-1
38
make the statements therein, in the light of the circumstances under which they
are made, not misleading (except that such counsel need not express an opinion
with respect to any financial statements or other financial information
contained or referred to therein).
Appendix C-2
39
ANNEX A
AAMES CAPITAL CORPORATION
Mortgage Pass-Through Certificates
PRICING AGREEMENT
March 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 March
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.
Appendix A-1
40
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.
Appendix A-2
41
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
Appendix A-3
42
SCHEDULE I
Principal Principal Principal Principal Principal
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
Underwriter Certificates Certificates Certificates Certificates Certificates
----------- ------------ ------------ ------------ ------------ ------------
Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities
Corporation $32,400,000 $28,600,000 $5,800,000 $9,200,000 $10,000,000
Credit Suisse First
Boston Corporation $24,300,000 $21,450,000 $4,350,000 $6,900,000 $7,500,000
Prudential
Securities
Incorporated $12,150,000 $10,725,000 $2,175,000 $3,450,000 $3,750,000
Xxxxxx Xxxxxxx &
Co. Incorporated $12,150,000 $10,725,000 $2,175,000 $3,450,000 $3,750,000
Total $81,000,000 $71,500,000 $14,500,000 $23,000,000 $25,000,000
43
SCHEDULE II
Registration Statement No. 333-21219
Base Xxxxxxxxxx Xxxxx 00, 0000
Xxxxxxxxxx Supplement dated March 18, 1997
Title of Certificates: Class A-1
---------
Amount of Certificates: $81,000,000 (approximate)
Pass-Through Rate: 6.47%
Purchase Price Percentage: 99.824375%
Cut-off Date: March 1, 1997
Closing: March 26, 1997
Denominations: $1,000.00 and integral multiples of $1.00 in excess
thereof.
Title of Certificates: Class A-2
---------
Amount of Certificates: $71,500,000 (approximate)
Pass-Through Rate: 6.88%
Purchase Price Percentage: 99.734375%
Cut-off Date: March 1, 1997
Closing: March 26, 1997
Denominations: $1,000.00 and integral multiples of $1.00 in excess
thereof.
Title of Certificates: Class A-3
---------
Amount of Certificates: $14,500,000 (approximate)
Pass-Through Rate: 7.22%
Purchase Price Percentage: 99.653125%
Cut-off Date: March 1, 1997
Closing: March 26, 1997
Denominations: $1,000.00 and integral multiples of $1.00 in excess
thereof.
Title of Certificates: Class A-4
---------
Amount of Certificates: $23,000,000 (approximate)
Pass-Through Rate: 7.61%
Purchase Price Percentage: 99.568750%
Cut-off Date: March 1, 1997
Closing: March 26, 1997
44
Denominations: $1,000.00 and integral multiples of $1.00 in excess
thereof.
Title of Certificates: Class A-5
---------
Amount of Certificates: $25,000,000 (approximate)
Pass-Through Rate: 7.18%
Purchase Price Percentage: 99.609375%
Cut-off Date: March 1, 1997
Closing: March 26, 1997
Denominations: $1,000.00 and integral multiples of $1.00 in excess
thereof.
Representative with respect to the Class A Certificates: Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Insurer: MBIA Insurance Corporation.
Location of Settlement: The offices of Xxxxxxx & Xxxxx L.L.P.,
000 Xxxxx Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
