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EXHIBIT 1.1
AAMES CAPITAL CORPORATION
AND
THE UNDERWRITERS
UNDERWRITING AGREEMENT
FOR
AAMES MORTGAGE TRUSTS
MORTGAGE PASS-THROUGH CERTIFICATES,
ISSUABLE IN SERIES
September 11, 1996
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September 11, 1996
Xxxxxx Brothers Inc.
as Representative of the Several Underwriters
named in Schedule I-A-1 to the applicable Pricing Agreement
c/x Xxxxxx Brothers Inc.
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Greenwich Capital Markets, Inc.
as Representative of the several Underwriters
named in Schedule I-A-2 to the applicable Pricing Agreement
c/o Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 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 applicable Pricing Agreement),
between the Company, as seller and servicer, and Bankers Trust Company of
California, N.A., as trustee (the "Trustee"). Xxxxxx Brothers Inc., will act
as underwriter and as Representative (in such capacity, the "Class A-1
Representative") of the several underwriters named in Schedule I-A-1 to the
applicable Pricing Agreement (the "Class A-1 Underwriters"), and Greenwich
Capital Markets, Inc., will act as underwriter and as Representative (in such
capacity, the "Class A-2 Representative"; each of the Class A-1 Representative
and the Class A-2 Representative, a "Representative" and together, the
"Representatives") of the several underwriters named in Schedule I-A-2 hereto
(the "Class A-2 Underwriters", and together with the Class A-1 Underwriters,
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
related Pricing Agreement. The Certificates of a Series to be purchased
pursuant to an applicable Pricing Agreement will be described more fully in the
Basic Prospectus and the related Prospectus Supplement (each of which terms is
defined below) which the Company will furnish to the Underwriters. If the
firms listed in Schedule I to the applicable Pricing Agreement include only the
Representative with respect to the applicable Class of Class A Certificates as
set forth above, then the terms "Underwriters" and "Representative," as used
herein, shall each be deemed to refer only to such Underwriter or
Representative, as the case may be.
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On or prior to the date of issuance of the Certificates of any Series,
if specified in the related Pricing Agreement, the Company will obtain one or
more certificate guaranty insurance policies (each a "Policy") issued by an
insurance provider specified in the applicable 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.
As used herein, the term "Execution Time" shall mean the date and time
that the applicable 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 with
respect to the Certificates of the applicable Class and Series; and the term
"Closing Date" shall mean the Closing Date specified in the applicable 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 Representatives.
1. Securities. Unless otherwise specified in the applicable
Pricing Agreement, the Certificates of each Series will be issued in classes as
follows: (i) a senior class with respect to each Mortgage Loan Group consisting
of the Class A-1 Certificates (which may include two or more subclasses) and
the Class A-2 Certificates (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 applicable 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. 333-10185), 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 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 related 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
related Pricing Agreement (which if not so specified shall be the date
of such Pricing Agreement), which constitutes a part of the
Registration Statement, together with the prospectus supplement dated
the date specified in the related Pricing Agreement (which if not so
specified shall be the date of such Pricing Agreement) (the
"Prospectus Supplement"),
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relating to the offering of the Class A Certificates, including any
documents 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 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 any applicable 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 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, operations 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
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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 Trustee by the
Company are within the corporate power of the Company and have been,
or will be, prior to the Closing Date duly authorized by all necessary
corporate action on the part of the Company and the execution and
delivery of such instruments, the consummation of the transactions
therein contemplated and compliance with the provisions thereof will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute or any agreement or
instrument to which the Company or any of its affiliates is a party or
by which it or any of them is bound or to which any of the property of
the Company or any of its affiliates is subject, the Company's
articles of incorporation or bylaws, or any order, rule or regulation
of any court, governmental agency or body or other tribunal having
jurisdiction over the Company, any of its affiliates or any of its or
their properties; and no consent, approval, authorization or order of,
or filing with, any court or governmental agency or body or other
tribunal is required for the consummation of the transactions
contemplated by this Agreement or the Prospectus in connection with
the sale of the Certificates by the Company. Neither the Company nor
any of its affiliates is a party to, bound by or in breach or
violation of any indenture or other agreement or instrument, or
subject to or in violation of any statute, order, rule or regulation
of any court, governmental agency or body or other tribunal having
jurisdiction over the Company or any of its affiliates, which
materially and adversely affects, or may in the future materially and
adversely affect, (i) the ability of the Company to perform its
obligations under the Pooling and Servicing Agreement, 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 applicable Pricing Agreement, the Class A
Certificates have been validly issued and outstanding and entitled to
the benefits of the Pooling and Servicing Agreement.
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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 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
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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.
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 applicable 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 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 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
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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 related 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 applicable 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
applicable 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 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 the Class A-1
Certificates that the purchase and sale of the Class A-2 Certificates occurs
simultaneously, and visa versa.
The Company agrees to have the Class A Certificates available for
inspection and review by the Underwriters in New York City 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 Representatives
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) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Class A Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will not file any amendment to the Registration Statement or
supplement to the Prospectus after the date of the applicable Pricing
Agreement and prior to the related Closing Date for the Class A
Certificates unless the Company has furnished the Representatives 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 Representatives reasonably and
promptly objects,
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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 fact 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, subject to Paragraph A
of this Section 5, an amendment or supplement that will correct such
statement or omission or an amendment that will effect such compliance
and, if such amendment or supplement is required to be contained in a
post-effective amendment to the Registration Statement, will use its
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 determines to file in accordance therewith.
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 Representatives.
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G. The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement or any
Pricing Agreement is terminated, 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 jurisdictions 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 jurisdictions as the
Underwriters may reasonably designate, if any.
J. The Company will file 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 8-K (the "Form 8-K -- Computational Materials")
at or before the time of filing of the Prospectus pursuant to Rule
424(b) under the 1933 Act; provided, however, that the Company shall
have no obligation to file any such materials which, in the reasonable
determination of the Company after consultation with such Underwriter
(i) are not, based upon the advice of outside counsel to the Company,
required to be filed pursuant to the Xxxxxx Letters (as defined in
Section 9A hereof) or (ii) contain any erroneous information or untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; it being understood, however, that the Company shall have
no obligation to review or pass upon the accuracy or adequacy of, or
to correct, any Computational Materials provided by any Underwriter to
the Company pursuant to Section 9A hereof. The parties hereto agree
that the Company shall have no
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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 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 one or more
Current Reports on Form 8-K (collectively, the "Form 8-K -- ABS Term
Sheets") (i) at or before the time of filing of the Prospectus
pursuant to Rule 424(b) under the 1933 Act, in the case of Structural
Term Sheets (as defined in Section 9A hereof) and (ii) within two
business days of first use in the case of Collateral Term Sheets (as
defined in Section 9A hereof); provided, however, that the Company
shall have no obligation to file any such materials which, in the
reasonable determination of the Company after consultation with such
Underwriter (i) are not, based upon advice of outside counsel to the
Company, required to be filed pursuant to the PSA Letter (as defined
in Section 9A hereof), (ii) do not contain the legends required by the
PSA Letter or (iii) contain erroneous information or contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; it being understood, however, that the Company
shall have no obligation to review or pass upon the accuracy or
adequacy of, or to correct, any ABS Term Sheets provided by any
Underwriter to the Company pursuant to Section 9A hereof. The parties
hereto agree that the Company shall have no liability for any failure
to file such ABS Term Sheets on such dates if the related Underwriter
has not delivered such materials to the Company one business day prior
to the date such filing is to be made.
6. Conditions of the Underwriters' Obligation. The obligation of
the Underwriters to purchase and pay for the Class A Certificates of a Series
as provided herein and the related 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 the respective terms thereof.
C. (1) The Underwriters shall 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.
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(2) The Underwriters shall have received the favorable
opinion of Xxxxxxx & Xxxxx L.L.P., 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
applicable Pricing Agreement, and such other matters as the
Underwriters may reasonably request.
In rendering their opinions, the counsel described in this
Paragraph C may rely, as to matters of fact, on certificates of
responsible officers of the Company, the Trustee and public officials.
Such opinions may also assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the
parties thereto other than the Company.
D. The Underwriters shall have received a letter from
Price Waterhouse LLP, dated the date of the Prospectus Supplement, in
form and substance satisfactory to the Underwriters, to the effect
that they have performed certain specified procedures requested by the
Underwriters with respect to the information set forth in the
Prospectus and certain matters relating to the Company.
E. The Class A Certificates shall have been rated in the
highest rating category by Standard & Poor's, a division of the
XxXxxx-Xxxx Companies, Inc. and Xxxxx'x Investors Service, Inc., and
such ratings shall not have been rescinded. The Underwriters and
counsel for the Underwriters shall have received copies 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.
The Company shall attach to such certificate an incumbency
certificate and shall certify in an officer's certificate a true and
correct copy of its articles of incorporation and bylaws which are in
full force and effect as of each relevant date and on the date of such
certificate and a certified true copy of the resolutions of its Board
of Directors with respect to the transactions contemplated herein.
G. The Underwriters shall have received a favorable
opinion of counsel to the Trustee, dated the Closing Date, in form and
substance satisfactory to the Underwriters and covering the
substantive matters referred to in Appendix B attached hereto.
In rendering such opinion, such counsel may rely, as to
matters of fact, on certificates of responsible officers of the
Company, the Trustee and public officials. Such opinion may also
assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto
other than the Trustee.
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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 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 relating to matters
with respect to the Certificates or the Policy, and such opinions
shall be dated the Closing Date.
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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 the applicable 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.
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, 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 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
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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 Terms
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 the Company to 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,
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in light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made therein (a) in
reliance upon and in conformity with written information
relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter, as described in Section 9A of this
Agreement, specifically for use in the preparation thereof and
so acknowledged in writing, or (b) any Computational Materials
or ABS Term Sheet (or amendments or supplements thereof)
furnished to the Company by such Underwriter pursuant to
Section 9A hereof and incorporated by reference in such
Registration Statement or the related Prospectus or any
amendment or supplement thereof (except that no such indemnity
shall be available for any losses, claims, damages or
liabilities, or actions in respect thereof resulting from any
error in Company Provided Information or any Mortgage Pool
Error, other than a Corrected Error), and such Underwriter or
the Underwriters, as the case may be, will reimburse the
Company for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending
against such loss, claim, damage, liability or action.
C. In case any proceeding (including
any governmental investigation) shall be instituted involving
any person in respect of which indemnity may be sought
pursuant to Paragraphs A and B above, such person (hereinafter
called the indemnified party) shall promptly notify the person
against whom such indemnity may be sought (hereinafter called
the indemnifying party) in writing thereof; but the omission
to notify the indemnifying party shall not relieve such
indemnifying party from any liability which it may have to any
indemnified party otherwise than under such Paragraph. The
indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding any
indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party 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 if 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 applicable Representative in the
case of parties indemnified pursuant to Paragraph A and by the
Company in the case of parties indemnified pursuant to
Paragraph B. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there is a
final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of
counsel as contemplated above, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party
and
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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 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 and
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 Series over the aggregate
purchase price of the Class A Certificates specified in the applicable
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 or 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.
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 and
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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), the Underwriters shall not be required
to contribute any amount by which the Aggregate Resale Price exceeds
the amount of any damages that the Underwriters have otherwise been
required to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission.
F. The Company and the Underwriters each expressly
waive, and agree not to assert, any defense to their respective
indemnification and contribution obligations under this Section 8
which they might otherwise assert based upon any claim that such
obligations are unenforceable under federal or state securities laws
or by reasons of public policy.
G. The obligations of the Company under this Section 8
shall be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Underwriters within the meaning of
the 1933 Act or the Exchange Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any
liability that the Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company
and to each person, if any, who controls the Company within the
meaning of the 1933 Act or the Exchange Act; provided, however, that
in no event shall the Company or the Underwriters be liable for double
indemnification.
9. Information Supplied by Underwriters; Representations and Warranties of
the Underwriters.
A. The Underwriters and the Company agree that the following
constitute the only information furnished by 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
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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 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 Sections 5K or 5L hereof.
B. Each Underwriter represents and warrants to and agrees with the
Company, that, as of the date of the related Closing Date:
(i) any Computational Materials and ABS Term Sheets
furnished by it to the Company pursuant to Section 9A hereof
constitute (either in original, aggregated or consolidated form) all
of the materials furnished by it to prospective investors prior to the
time of delivery thereof to the Company and that it reasonably
believes that such materials constitute the type of materials
contemplated by the Xxxxxx Letters and the PSA Letter; and
(ii) on the date of delivery of any such Computational
Materials or ABS Term Sheets to the Company pursuant to this Section 9
and on the related Closing Date, such Computational Materials and ABS
Term Sheets (or materials) did not and will not include any untrue
statement of a material fact, or, when read in conjunction with the
related Prospectus and Prospectus Supplement, omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
Notwithstanding the foregoing, the Underwriters make no representation
or warranty as to whether any Computational Materials or ABS Term Sheets (or
any written or electronic materials on which such Computational Materials or
ABS Term Sheets are based) included or will include any untrue statement
resulting directly from any Mortgage Pool Error or, in the case of an ABS Term
Sheet, any error in Company Provided Information.
18
20
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 set forth in the applicable
Pricing Agreement, 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 related 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 to expenses of the Underwriters) and Section
8 hereof shall at all times be effective. If the Underwriters elect to
terminate this Agreement and/or the related Pricing Agreement as provided in
this Section 12, the Company shall be notified promptly by the Representatives
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 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
19
21
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.
16. Amendments and Waivers. This Agreement may be amended,
modified, altered or terminated, and any of its provisions waived, only in a
writing signed on behalf of the parties hereto.
Very truly yours,
AAMES CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President - Finance
Confirmed as of the date first above written:
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
For itself and as Representative of the several
Underwriters named in Schedule I-A-1 to the
applicable Pricing Agreement
GREENWICH CAPITAL MARKETS, INC.
By: /s/ Xxxxxxx X. XxXxxxx
-----------------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
For itself and as Representative of the several
Underwriters named in Schedule I-A-2 to the
applicable Pricing Agreement
20
22
EXHIBIT A
September 11, 1996
Xxxxxx Brothers Inc.
as Representative of the Several Underwriters
named in Schedule I-A-1 to the applicable Pricing Agreement
c/x Xxxxxx Brothers Inc.
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Greenwich Capital Markets, Inc.
as Representative of the several Underwriters
named in Schedule I-A-2 to the applicable Pricing Agreement
c/o Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Re: Underwriting Agreement for Aames Mortgage Trust, dated September 11,
1996 the "Underwriting Agreement") between Aames Capital Corporation
("Aames") and Xxxxxx Brothers Inc. as Representative of the Underwriters
named in Schedule I-A-1 and Greenwich Capital Markets, Inc. as
Representative of the several Underwriters named in Schedule I-A-2 to
the Pricing Agreement dated September 11, 1996 (the "Pricing Agreement")
Gentlemen:
Pursuant to the Underwriting Agreement and above-referenced Pricing
Agreement (collectively, the "Designated Agreement"), Aames has undertaken
certain financial obligations with respect to the indemnification of the
Underwriters with respect to the Registration Statement, and the Prospectus
described in the Designated Agreement. Any financial obligations of Aames
under the Designated Agreement, whether or not specifically enumerated in this
paragraph, are hereinafter referred to as the "Joint and Several Obligations;"
provided, however, that "Joint and Several Obligations" shall mean only the
financial obligations of Aames under the Designated Agreement (including the
payment of money damages for a breach of any of Aames' obligations under the
Designated Agreement, whether financial or otherwise) but shall not include any
obligations not relating to the payment of money.
As a condition of its execution of the Designated Agreement, the
Underwriters have required the undersigned, Aames Financial Corporation
("AFC"), the parent corporation of Aames, to acknowledge its joint and several
liability with Aames for the payment of the Joint and Several Obligations under
the Designated Agreement.
Exhibit A-1
23
Now, therefore, the Underwriters and AFC do hereby agree that:
(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.
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:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXX BROTHERS INC.
By: _______________________________________________
Name:
Title:
For itself and as Representative of the several
Underwriters named in Schedule I-A-1 to the
applicable Pricing Agreement
GREENWICH CAPITAL MARKETS, INC.
By: _______________________________________________
Name:
Title:
For itself and as Representative of the several
Underwriters named in Schedule I-A-2 to the
applicable Pricing Agreement
Exhibit A-2
24
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 related 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;
10. 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,
Appendix A-1
25
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; and
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 thereof, 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.
17. The execution and delivery of the Pooling and Servicing
Agreement has been duly authorized by the Company and the Agreement has been
duly executed and delivered by the Company and constitutes a valid, legal and
binding agreement of the Company, enforceable against the Company in accordance
with its terms except as enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, liquidation, receivership, moratorium or other
similar laws relating to or affecting creditors' rights generally or (b)
general principles of equity or public policy, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
18. The 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
Appendix A-2
26
(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 Basic 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)(l) 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 (iii)
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 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
Appendix A-3
27
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 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
29
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 or 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 for liabilities arising under the 1933 Act, are
against public policy as expressed in the 1933 Act an 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 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-1
30
ANNEX A
AAMES CAPITAL CORPORATION
Mortgage Pass-Through Certificates
PRICING AGREEMENT
September 11, 1996
Xxxxxx Brothers Inc.
as Representative of the several Underwriters
named in Schedule I-A-1 to the applicable Pricing Agreement
c/x Xxxxxx Brothers Inc.
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Greenwich Capital Markets, Inc.
as Representative of the several Underwriters
named in Schedule I-A-2 to the applicable Pricing Agreement
c/o Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Gentlemen:
Aames Capital Corporation (the "Company") proposes, subject to the
terms and conditions stated herein and the Underwriting Agreement, dated
September 11, 1996 (the "Underwriting Agreement"), between the Company and
Xxxxxx Brothers Inc., underwriter and as Representative (in such capacity, the
"Class A-1 Representative) of the several underwriters named in Schedule I-A-1
hereto, and Greenwich Capital Markets Limited, as underwriter and as
Representative (in such capacity, the "Class A-2 Representative"; each of the
Class A-1 Representative and the Class A-2 Representative, a "Representative"
and together, the "Representatives") of the several underwriters named in
Schedule I-A-2 hereto (together with the Class A-1 Representative and the Class
A-2 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 Representatives contained in the Underwriting
Agreement shall be deemed to refer to the Representatives named herein. Unless
otherwise defined herein, terms defined in the Underwriting Agreement are used
herein as therein defined.
Annex A-1
31
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.
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:
XXXXXX BROTHERS INC.
By: _______________________________________________
Name:
Title:
For itself and as Representative of the several
Underwriters named in Schedule I-A-1 to the
applicable Pricing Agreement
GREENWICH CAPITAL MARKETS, INC.
By: _______________________________________________
Name:
Title:
For itself and as Representative of the several
Underwriters named in Schedule I-A-2 to the
applicable Pricing Agreement
Annex A-2
32
SCHEDULE I-A-1
Principal Amount Principal Amount Principal Amount Principal Amount Principal Amount
of Class A-1A of Class A-1B of Class A-1C of Class A-1D of Class A-1E
Underwriter Certificates Certificates Certificates Certificates Certificates
----------- ---------------- ---------------- ---------------- ---------------- ----------------
Xxxxxx Brothers $20,760,000 $16,440,000 $5,235,000 $5,970,000 $4,095,000
Inc.
Greenwich Capital $20,760,000 $16,440,000 $5,235,000 $5,970,000 $4,095,000
Markets, Inc.
Bear, Xxxxxxx & Co. $13,840,000 $10,960,000 $3,490,000 $3,980,000 $2,730,000
Inc.
Prudential $13,840,000 $10,960,000 $3,490,000 $3,980,000 $2,730,000
Securities
Incorporated
Total $69,200,000 $54,800,000 $17,450,000 $19,990,000 $13,650,000
Schedule I-A-1
33
SCHEDULE I-A-2
Underwriter Principal Amount of
----------- Class A-2 Certificates
----------------------
Greenwich Capital Markets, Inc. $105,000,000
Xxxxxx Brothers Inc. $105,000,000
Bear, Xxxxxxx & Co. Inc. $ 70,000,000
Prudential Securities Incorporated $ 70,000,000
------------
TOTAL: $350,000,000
Schedule I-A-2
34
SCHEDULE II
Registration Statement No. 333-10185
Basic Prospectus dated September 11, 1996
Prospectus Supplement dated September 11, 1996
Title of Certificates: Class A-1A
----------
Amount of Certificates: $69,200,000 (approximate)
Pass-Through Rate: LIBOR as of September 13, 1996 for the initial Interest Period;
LIBOR plus 0.10% thereafter
Purchase Price Percentage: 100%
Cut-off Date: September 1, 1996
Closing: September 17, 1996
Denominations: $1,000.00 and integral multiples of $1.00 in excess thereof.
Title of Certificates: Class A-1B
----------
Amount of Certificates: $54,800,000 (approximate)
Pass-Through Rate: 99.984375%
Purchase Price Percentage: 7.22% (plus accrued interest from Cut-off Date at applicable
Pass-Through Rate)
Cut-off Date: September 1, 1996
Closing: September 17, 1996
Denominations: $1,000.00 and integral multiples of $1.00 in excess thereof.
Title of Certificates: Class A-1C
----------
Amount of Certificates: $17,450,00 (approximate)
Pass-Through Rate: 7.57%
Purchase Price Percentage: 99.984375% (plus accrued interest from Cutoff Date at applicable
Pass-Through Rate)
Cut-off Date: September 1, 1996
Closing: September 17, 1996
Denominations: $1,000.00 and integral multiples of $1.00 in excess thereof.
Schedule II-1
35
Title of Certificates: Class A-1D
----------
Amount of Certificates: $19,900,000 (approximate)
Pass-Through Rate: 7.87%
Purchase Price Percentage: 99.953125% (plus accrued interest from Cutoff Date at
applicable Pass-Through Rate)
Cut-off Date: September 1, 1996
Closing: September 17, 1996
Denominations: $1,000.00 and integral multiples of $1.00 in excess thereof.
Title of Certificates: Class A-1E
----------
Amount of Certificates: $13,650,000 (approximate)
Pass-Through Rate: 8.04%
Purchase Price Percentage: 99.984375% (plus accrued interest from Cutoff Date at
applicable Pass-Through Rate)
Cut-off Date: September 1, 1996
Closing: September 17, 1996
Denominations: $1,000.00 and integral multiples of $1.00 in excess thereof.
Title of Certificates: Class A-2
---------
Amount of Certificates: $350,000,000 (approximate)
Initial Pass-Through Rate: LIBOR + .31% for each Interest Period on or prior to the Call
Date; LIBOR + .62% thereafter
Purchase Price Percentage: 100%
Cut-off Date: September 1, 1996
Settlement Date September 17, 1996
Closing: September 17, 1996
Denominations: $1,000.00 and integral multiples of $1.00 in excess thereof.
Representative with respect to the Class A-1 Certificates: Xxxxxx Brothers Inc.
Representative with respect to the Class A-2 Certificates: Greenwich Capital Markets, Inc.
Insurer: Financial Security Assurance Inc.
Location of Settlement: The offices of Xxxxxxx & Xxxxx L.L.P., 000 Xxxxx Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
Schedule II-2
