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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
MARCH 23, 1998
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March 23, 1998
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
as Representative of the several Underwriters
named in Schedule I to the Pricing Agreement
c/▇ ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Aames Capital Corporation (the "Company") proposes, from time to time,
to enter into one or more pricing agreements (each a "Pricing Agreement") in the
form of Annex A hereto, with such additions and deletions as the parties thereto
may determine, and, subject to the terms and conditions stated herein and
therein, to issue in series (each a "Series") and to sell to the Underwriters
(as hereinafter defined), mortgage pass-through certificates, each Series of
which is to be issued pursuant to an applicable pooling and servicing agreement
(a "Pooling and Servicing Agreement") to be dated as of the applicable Cut-off
Date (as defined in the Pricing Agreement), between the Company, as seller and
servicer, and Bankers Trust Company of California, N.A., as trustee (the
"Trustee"). ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, will act as
underwriter and as Representative (in such capacity, the "Representative") of
the several underwriters named in Schedule I hereto (the "Underwriters"). Each
Series of Certificates (as defined below) will evidence an undivided beneficial
ownership interest in a separate Trust (as defined in the related Pooling and
Servicing Agreement) consisting primarily of a pool (the "Pool") of mortgage
loans (the "Mortgage Loans") listed in an attachment to such Pooling and
Servicing Agreement. The Certificates will be issued in one or more classes
(each a "Class"), which may be divided into one or more subclasses (each a
"Subclass"). Any rights of holders of Certificates of a particular Class or
Subclass to receive certain distributions with respect to the Mortgage Loans
that are senior to such rights of holders of Certificates of any other Class or
Subclass of the same Series shall be specified in the Pricing Agreement. The
Certificates of a Series to be purchased pursuant to a Pricing Agreement will be
described more fully in the base Prospectus and the related Prospectus
Supplement (each of which terms is defined below) which the Company will furnish
to the Underwriters.
On or prior to the date of issuance of the Certificates of any Class, if
specified in the Pricing Agreement, the Company will obtain a certificate
guaranty insurance policy satisfying the description thereof in the Offering
Document.
As used herein, the term "Execution Time" shall mean the date and time
that the Pricing Agreement is executed and delivered by the parties thereto; the
term "Agreement," "this Agreement" and terms of similar import shall mean this
Underwriting Agreement including the Pricing Agreement; and the term "Closing
Date" shall mean the Closing Date specified in the
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Pricing Agreement. All capitalized terms used but not otherwise defined herein
have the respective meanings set forth in the form of Pooling and Servicing
Agreement heretofore delivered to the Representative.
1. Securities. Unless otherwise specified in the Pricing Agreement, the
Certificates of each Series will be issued in classes as follows: (i) one or
more classes of securities rated in the highest category by the Rating Agencies
(which may include two or more subclasses) with respect to the Fixed Rate
Certificates (collectively, the "Fixed Rate Group Certificates") and a senior
class of Adjustable Rate Certificates (the "Class A-1A Certificates"), (ii) if
so specified, one or more mezzanine classes (which may include two or more
subclasses) with respect to the Adjustable Rate Group (collectively, the "Class
M Certificates"), (iii) if so specified, a subordinate class (which may include
two or more subclasses) with respect to the Adjustable Rate Group (collectively,
the "Class B Certificates" and together with the "Class A-A1 Certificates" and
the "Class M Certificates", the "Adjustable Rate Certificates"), (iv) the Class
C Certificates (the "Class C Certificates"), and (v) a residual class with
respect to each REMIC election made with respect to the Trust (the "Class R
Certificates"). The Fixed Rate Group Certificates, the Class A-1A Certificates,
the Class M Certificates and the Class B Certificates specified in the Pricing
Agreement are hereinafter referred to as the "Offered Certificates." The Offered
Certificates, the Class C Certificates and the Class R Certificates are
hereinafter referred to as the "Certificates."
2. Representations and Warranties of the Company. The Company represents
and warrants to, and covenants with, each Underwriter that:
A. A registration statement on Form S-3 (Registration No.
333-21219), including a prospectus and a form of prospectus supplement
that contemplates the offering of mortgage pass-through certificates
from time to time, has been filed by the Company and Aames Capital
Acceptance Corp. ("ACAC") with the Securities and Exchange Commission
(the "Commission"), pursuant to the Securities Act of 1933, as amended
and the rules and regulations of the Commission thereunder
(collectively, the "1933 Act"), and as amended from time to time by one
or more amendments, including post-effective amendments, has been
declared effective by the Commission prior to the date of the Pricing
Agreement. The Company will cause to be filed with the Commission,
after effectiveness of such registration statement (and any such
post-effective amendments), a final prospectus in accordance with Rules
415 and 424(b)(2) under the 1933 Act, relating to the Offered
Certificates.
As used herein, the term "Effective Date" shall mean the
date that the Registration Statement (including the most recently filed
post-effective amendment, if any) became effective. "Registration
Statement" shall mean the registration statement referred to in the
preceding paragraph, including the exhibits thereto and any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the 1933 Act specifically relating to the terms of the Offered
Certificates or the Pool and filed with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
except that if the Registration Statement is amended by the filing with
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the Commission of a post-effective amendment thereto, the term
"Registration Statement" shall mean collectively the Registration
Statement, as amended by the most recently filed post-effective
amendment thereto, in the form in which it was declared effective by
the Commission. The prospectus dated the date specified in the Pricing
Agreement (which if not so specified shall be the date of such Pricing
Agreement), which constitutes a part of the Registration Statement,
together with the prospectus supplement dated the date specified in the
Pricing Agreement (which if not so specified shall be the date of such
Pricing Agreement) (the "Prospectus Supplement"), relating to the
offering of the Offered Certificates, including any document
incorporated therein by reference pursuant to the Exchange Act, are
hereinafter referred to collectively as the "Prospectus," except that
if the Prospectus is thereafter amended or supplemented pursuant to
Rule 424(b), the term "Prospectus" shall mean the prospectus, as so
amended or supplemented pursuant to Rule 424(b), from and after the
date on which such amended prospectus or supplement is filed with the
Commission. Any preliminary form of the Prospectus Supplement which has
heretofore been filed pursuant to Rule 402(a) or Rule 424 is
hereinafter called a "Preliminary Prospectus Supplement." Any reference
herein to the terms "amend," "amendment" or "supplement" with respect
to the Registration Statement, the Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the filing of any
document under the Exchange Act after the effective date of the
Registration Statement or the issue date of the Prospectus or
Prospectus or Prospectus Supplement, as the case may be, incorporated
therein by reference.
B. As of the date hereof, and as of the dates when the
Registration Statement became effective, when the Prospectus Supplement
is first filed pursuant to Rule 424(b) under the 1933 Act, when, prior
to the Closing Date, any other amendment to the Registration Statement
becomes effective, and when any supplement to the Prospectus is filed
with the Commission, and at the Closing Date, (i) the Registration
Statement, as amended, as of any such time, and the Prospectus, as
amended or supplemented as of any such time, complied or will comply in
all material respects with the applicable requirements of the 1933 Act,
and (ii) the Registration Statement, as amended as of any such time,
did not and will not contain any untrue statement of a material fact
and did not and will not omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading and the Prospectus, as amended or supplemented as of any
such time, did not and will not contain an untrue statement of a
material fact and did not and will not omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from (i) the Registration
Statement or the Prospectus in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the
Underwriters as set forth in this Agreement or the Pricing Agreement
specifically for use in connection with the preparation of the
Registration Statement or the Prospectus and (ii) the Form 8-K -
Computational Materials (as defined in Section 5K below) or Form 8-K -
ABS Term Sheets (as defined in Section 5L below), or in any amendment
thereof or supplement
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thereto, incorporated by reference in such Registration Statement or
such Prospectus (or any amendment thereof or supplement thereto).
C. The Company is duly organized, validly existing and in good
standing under the laws of the State of California, has full power and
authority (corporate and other) to own its properties and conduct its
business as now conducted by it, and as described in the Prospectus,
and is duly qualified to do business in each jurisdiction in which it
owns or leases real property (to the extent such qualification is
required by applicable law) or in which the conduct of its business
requires such qualification except where the failure to be so qualified
does not involve (i) a material risk to, or a material adverse effect
on, the business, properties, financial position, operation or results
of operations of the Company or (ii) any risk whatsoever as to the
enforceability of any Mortgage Loan.
D. There are no actions, proceedings or investigations pending,
or, to the knowledge of the Company, threatened, before any court,
governmental agency or body or other tribunal (i) asserting the
invalidity of this Agreement, the Certificates or of the Pooling and
Servicing Agreement, (ii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement or the Pooling and Servicing Agreement,
(iii) which may, individually or in the aggregate, materially and
adversely affect the validity or enforceability of, this Agreement, the
Certificates or the Pooling and Servicing Agreement, or the performance
by the Company of its obligations under this Agreement or the Pooling
and Servicing Agreement or (iv) which may affect adversely the federal
income tax attributes of the Offered Certificates as described in the
Prospectus.
E. The execution and delivery by the Company of this Agreement
and the Pooling and Servicing Agreement, the direction by the Company
to the Trustee to execute, countersign, authenticate and deliver the
Certificates and the transfer and delivery of the Mortgage Loans to the
Trust by the Company are within the corporate power of the Company and
have been, or will be, prior to the Closing Date duly authorized by all
necessary corporate action on the part of the Company and the execution
and delivery of such instruments, the consummation of the transactions
therein contemplated and compliance with the provisions thereof will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute or any agreement or
instrument to which the Company or any of its affiliates is a party or
by which it or any of them is bound or to which any of the property of
the Company or any of its affiliates is subject, the Company's articles
of incorporation or bylaws, or any order, rule or regulation of any
court, governmental agency or body or other tribunal having
jurisdiction over the Company, any of its affiliates or any of its or
their properties; and no consent, approval, authorization or order of,
or filing with, any court 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
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agreement or instrument, or subject to or in violation of any statute,
order, rule or regulation of any court, governmental agency or body or
other tribunal having jurisdiction over the Company or any of its
affiliates, which materially and adversely affects, or may in the
future materially and adversely affect, (i) the ability of the Company
to perform its obligations under the Pooling and Servicing Agreement or
this Agreement or (ii) the business, operations, results of operations,
financial position, income, properties or assets of the Company.
F. This Agreement has been duly and validly authorized, executed
and delivered by the Company. The Pooling and Servicing Agreement will
be duly executed and delivered by the Company and will constitute the
legal, valid and binding obligation of the Company enforceable in
accordance with its terms, except as enforceability may be limited by
(i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the
rights of creditors, and (ii) general principles of equity, whether
enforcement is sought in a proceeding at law or in equity.
G. The Offered Certificates will conform in all material respects
to the description thereof contained in the Prospectus, and the
direction by the Company to the Trustee to execute, countersign,
authenticate and deliver the Certificates will be duly and validly
authorized and, when the Offered Certificates have been duly and
validly executed, authenticated, issued and delivered in accordance
with the Pooling and Servicing Agreement and sold to the Underwriters
as provided herein and the Pricing Agreement, the Offered Certificates
have been validly issued and outstanding and entitled to the benefits
of the Pooling and Servicing Agreement.
H. At the Closing Date, the Mortgage Loans will conform in all
material respects to the description thereof contained in the
Prospectus and the representations and warranties contained in this
Agreement will be true and correct in all material respects. The
representations and warranties set out in the Pooling and Servicing
Agreement are hereby made to the Underwriters as though set out herein,
and at the dates specified in the Pooling and Servicing Agreement, such
representations and warranties were or will be true and correct in all
material respects.
I. The transfer of the Mortgage Loans to the Trust created by the
related Pooling and Servicing Agreement (the "Trust") at the Closing
Date will be treated by the Company for financial accounting and
reporting purposes as a sale of assets and not as a pledge of assets to
secure debt.
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
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of an unfavorable decision, ruling or finding, would materially and
adversely affect the business, operations, results of operations,
financial position, income, property or assets of the Company.
K. Any taxes, fees and other governmental charges in connection
with the execution and delivery of this Agreement and the Pooling and
Servicing Agreement, or the execution and issuance of the Certificates
have been or will be paid at or prior to the Closing Date.
L. There has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company, its parent company or its subsidiaries,
taken as a whole, from the date of the end of the most recent fiscal
quarter of the Company for which financial statements (whether audited
or unaudited) have been made publicly available (the "Date of Recent
Company Financial Statements"), to the date hereof.
M. The Pooling and Servicing Agreement will conform in all
material respects to the description thereof contained in the
Prospectus.
N. The Company is not aware of (i) any request by the Commission
for any further amendment of the Registration Statement or the
Prospectus or for any additional information with respect to the
offering of the Offered Certificates, (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose or (iii) any notification with respect to
the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
O. Each assignment of Mortgage required to be prepared pursuant
to the Pooling and Servicing Agreement is based on forms recently
utilized by the Company with respect to mortgaged properties located in
the appropriate jurisdiction and used in the regular course of the
Company's business. Based on the Company's experience with such matters
it is reasonable to believe that upon execution each such assignment
will be in recordable form and will be sufficient to effect the
assignment of the Mortgage to which it relates as provided in the
Pooling and Servicing Agreement.
P. Neither the Company nor the Trust will be subject to
registration as an "investment company" under the Investment Company
Act of 1940, as amended (the "Investment Company Act"). The Pooling and
Servicing Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended, and the Trust is not required to be
registered.
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Q. In connection with the offering of the Certificates in the
State of Florida, the Company hereby certifies that it has complied
with all provisions of Section 5.17.075 of the Florida Securities and
Investor Protection Act.
Any certificate signed by any officer of the Company and delivered to
the Underwriters in connection with the sale of the Offered Certificates to such
Underwriters shall be deemed a representation and warranty as to the matters
covered thereby by the Company to each person to whom the representations and
warranties in this Section 2 are made.
3. Agreements of the Underwriters.
A. The several Underwriters agree with the Company that upon the
execution of the Pricing Agreement and authorization by the
Underwriters of the release of the Offered Certificates of the related
Series, the Underwriters shall offer such Offered Certificates for sale
upon the terms and conditions set forth in the prospectus as amended or
supplemented.
B. Each Underwriter severally represents and agrees that:
(i) it has not offered or sold and will not offer or
sell, prior to the date six months after their date
of issuance, any Offered Certificates to persons in
the United Kingdom, except to persons whose
activities involve them in acquiring, holding,
managing or disposing of investments (as principal
or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted
in and will not result in an offer to the public in
the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995;
(ii) it has complied and will comply with all applicable
provisions of the Financial Services Act of 1986
with respect to anything done by it in relation to
the Offered Certificates in, from or otherwise
involving the United Kingdom;
(iii) it has only issued or passed on and will only issue
or pass on to any person in the United Kingdom any
document received by it in connection with the
issuance of the Offered Certificates only if that
person is of a kind described in Article 11(3) of
the Financial Services Act of 1986 (Investment
Advertisements) (Exemptions) Order 1997, or such
person is one to whom the document can lawfully be
issued or passed on;
(iv) no action has been or will be taken by such
Underwriter that would result in a public offering
of the Offered Certificates or distribution of the
Prospectus or Prospectus Supplement or any
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Computational Materials or any other offering
material in relation to the Offered Certificates in
any non-U.S. jurisdiction where action for that
purpose is required unless the Company has agreed
to such actions and such actions have been taken;
and
(v) it understands that, in connection with the
issuance, offer and sale of the Offered
Certificates and with the distribution of the
Prospectus or Prospectus Supplement or any
Computational Materials or any other offering
material in relation to the Offered Certificates
in, to or from any non-U.S. jurisdiction, the
Company has not taken and will not take any action,
and such Underwriter will not offer, sell or
deliver any Offered Certificates or distribute the
Prospectus or Prospectus Supplement or any
Computational Materials or any other offering
material relating to the Offered Certificates in,
to or from any non-U.S. jurisdiction except under
circumstances which will result in compliance with
applicable laws and regulations and which will not
impose any liability, obligation or responsibility
on the Company or the other Underwriters.
4. Purchase, Sale and Delivery of the Offered Certificates. The Company
hereby agrees, subject to the terms and conditions hereof, to sell the Offered
Certificates specified in the Pricing Agreement to the Underwriters, who, upon
the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, hereby agree, severally and not jointly, to
purchase the entire aggregate principal amount of the Offered Certificates in
the amounts set forth in Schedule I to such Pricing Agreement. At the time of
issuance of the Certificates, the Mortgage Loans will be sold by the Company to
the Trust pursuant to the Pooling and Servicing Agreement. The Company will be
obligated, under the Pooling and Servicing Agreement, to service the Mortgage
Loans either directly or through subservicers.
The Offered Certificates to be purchased by the Underwriters will be
delivered by the Company to the Underwriters (which delivery shall be made
through the facilities of The Depository Trust Company ("DTC") or Cedel Bank,
societe anonyme or the Euroclear System) against payment of the purchase price
therefor, in an amount equal to the percentage of the aggregate original
principal amount thereof as specified in the Pricing Agreement, plus interest
accrued, if any, at the rate on the aggregate original principal amount thereof
from the date specified in such Pricing Agreement to, but not including, the
Closing Date, by a same day federal funds wire payable to the order of the
Company.
Settlement shall take place at the specified offices of O'Melveny &
▇▇▇▇▇ LLP at 10:00 a.m., New York City time, on the date specified in the
Pricing Agreement, or at such other place and at such other time thereafter
(such time being herein referred to as the "Closing Date"), in each case as the
Underwriters and the Company shall determine. The Offered Certificates will be
prepared in definitive form and in such authorized denominations as the
Underwriters may request, registered in the name of Cede & Co., as nominee of
DTC.
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It is a condition to the purchase and sale of each Class of Offered
Certificates that the purchase and sale of each other Class of Offered
Certificates occurs simultaneously.
The Company agrees to have the Offered Certificates available for
inspection and review by the Underwriters in Los Angeles not later than 11:00
a.m. New York City time on the business day prior to the Closing Date.
5. Covenants of the Company. The Company covenants and agrees with each
Underwriter that:
A. The Company will promptly advise the Representative and
counsel to the Underwriters (i) when any amendment to the Registration
Statement relating to the offering of the Offered Certificates shall
have become effective, (ii) of any request by the Commission for any
amendment to the Registration Statement or the Prospectus or for any
additional information to the extent applicable to the offering of the
Offered Certificates, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose
and (iv) or the receipt by the Company of any notification with respect
to the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will not file, and will use
its commercially reasonable efforts to prevent ACAC from filing, any
amendment to the Registration Statement or supplement to the Prospectus
after the date of the Pricing Agreement and prior to the related
Closing Date for the Offered Certificates unless the Company has
furnished the Representative and counsel to the Underwriters copies of
such amendment or supplement for their review prior to filing and will
not file any such proposed amendment or supplement to which the
Representative reasonably and promptly objects, unless such filing is
required by law. The Company will use its commercially reasonable
efforts to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if issued, to obtain
as soon as possible the withdrawal thereof.
B. If, at any time during the period in which the Prospectus is
required by law to be delivered, any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material 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 and shall use its commercially
reasonable efforts to cause ACAC to promptly prepare and file, subject
to Paragraph A of this Section 5, an amendment or supplement that will
correct such statement or omission or an amendment that will effect
such compliance and, if such amendment or supplement is required to be
contained in a post-effective amendment to the Registration Statement,
will use its commercially reasonable efforts to cause such
post-effective amendment of the Registration Statement to become
effective as soon as possible, provided, however, that the Company will
not be required to file any such
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amendment or supplement with respect to any Computational Materials or
ABS Term Sheets incorporated by reference in the Prospectus other than
any amendments or supplements of such Computational Materials or ABS
Term Sheets that are furnished to the Company by the Underwriters
pursuant to Section 9A hereof which the Company is required to file in
accordance with Section 5K or 5L.
C. The Company will furnish to the Underwriters, without charge,
copies of the Registration Statement (including exhibits thereto), any
documents incorporated therein by reference, and, so long as delivery
of a prospectus by the Underwriters or a dealer may be required by the
1933 Act, as many copies of the Prospectus, as amended or supplemented,
and any amendments and supplements thereto as the Underwriters may
reasonably request. The Company will pay the expenses of printing all
offering documents relating to the offering of the Offered
Certificates.
D. As soon as practicable, but not later than sixteen months
after the effective date of the Registration Statement, the Company
will cause the Trust to make generally available to holders of Offered
Certificates statements of the Trust collectively covering a period of
at least 12 months beginning after the effective date of the
Registration Statement. Such statements will be filed with the
Commission pursuant to the provisions of the Exchange Act.
E. During a period of 20 calendar days from the Execution Time,
neither the Company nor any affiliate of the Company will, without the
Representative's prior written consent (which consent shall not be
unreasonably withheld), enter into any agreement to offer or sell
mortgage pass-through certificates backed by mortgage loans, except
pursuant to this Agreement.
F. So long as any of the Offered Certificates are outstanding,
the Company will cause to be delivered to the Underwriters, (i) all
documents required to be distributed to the holders of the Offered
Certificates, (ii) from time to time, any other information concerning
the Trust filed with any government or regulatory authority that is
otherwise publicly available, as the Underwriters may reasonably
request, (iii) the annual statement as to compliance delivered to the
Trustee pursuant to the Pooling and Servicing Agreement, (iv) the
annual statement of a firm of independent public accountants furnished
to the Trustee pursuant to the Pooling and Servicing Agreement as soon
as such statement is filed by the Company with the Commission and (v)
any information required to be delivered by the Company or the Servicer
pursuant to Section 4.01 of the form of Pooling and Servicing Agreement
heretofore delivered to the Representative.
G. The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement or the Pricing Agreement is
consummated, will pay all expenses in connection with the transactions
contemplated herein, including but not limited to (i) the expenses of
printing (or otherwise reproducing) all documents relating to the
offering and the fees and disbursements of its counsel incurred in
connection with
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the issuance and delivery of the Offered Certificates, (ii) the
preparation of all documents specified in this Agreement, (iii) any
fees and expenses of the Trustee (including legal fees) that are not
payable by or from the Trust, (iv) any accounting fees and
disbursements relating to the offering of Offered Certificates, (v) any
fees charged by rating agencies for rating the Offered Certificates,
(vi) any reasonable fees and disbursements of counsel to the
Underwriters relating to Blue Sky undertakings (vii) any reasonable
fees and disbursements of counsel to the Underwriters in an amount not
to exceed $5,000 per Series relating to the representation of the
Underwriters with respect to the offering of the Offered Certificates
of such Series and (viii) the fees and charges related to the filing
with the Commission of such Current Reports on Form 8-K and such other
materials as are contemplated hereby, whether pursuant to ▇▇▇▇▇ 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 Offered Certificates
for sale to the extent necessary under any state securities or Blue Sky
laws in any jurisdiction as may be reasonably requested by the
Underwriters, if any, and will pay all expenses (including reasonable
fees and disbursements of counsel to the Underwriters) in connection
with such qualification and in connection with the determination of the
eligibility of the Offered Certificates for investment under the laws
of such jurisdiction as the Underwriters may reasonably designate, if
any.
J. The Company will file or cause to be filed with the Commission
within fifteen days of the termination of the Commitment Period (as
such term is defined in the related Pooling and Servicing Agreement), a
Current Report on Form 8-K setting forth specific information
concerning the description of the Mortgage Pool (the "Form 8-K -
Mortgage Pool"). Without limiting the generality of any other provision
hereof, such Form 8-K - Mortgage Pool shall be deemed to be a part of
the Registration Statement and Prospectus from and after the date it is
first filed with the Commission.
K. The Company will cause any Computational Materials (as defined
in Section 9A hereof) with respect to the Offered Certificates which
are delivered by any Underwriter to the Company pursuant to Section 9A
hereof to be filed with the Commission on a Current Report on Form ▇-▇
(▇▇▇ "▇▇▇▇ ▇-▇ - ▇▇▇▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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
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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 Company
will notify the Underwriters promptly in the event that the Company
does not make any such filing. The parties hereto agree that the
Company shall have no liability for any failure to file such
Computational Materials on such date if the related Underwriter has not
delivered such materials to the Company one business day prior to the
date such filing is to be made.
L. The Company will cause any ABS Term Sheets (as defined in
Section 9A hereof) with respect of the Offered Certificates which are
delivered by any Underwriter to the Company pursuant to Section 9A
hereof to be filed with the Commission on one or more Current Reports
on Form 8-K (collectively, the "Form 8-K -ABS Term Sheets") (i) at or
before the time of filing of the Prospectus pursuant to Rule 424(b)
under the 1933 Act, in the case of Structural Term Sheets (as defined
in Section 9A hereof) and (ii) within two business days of first use in
the case of Collateral Term Sheets (as defined in Section 9A hereof);
provided, however, that the Company shall have no obligation to file
any such materials which, in the reasonable determination of the
Company after consultation with such Underwriter (i) are not, based
upon advice of outside counsel to the Company, required to be filed
pursuant to the PSA Letter (as defined in Section 9A hereof), (ii) do
not contain the legends required by the PSA Letter or (iii) contain
erroneous information or contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to
review or pass upon the accuracy or adequacy of, or to correct, any ABS
Term Sheets provided by any Underwriter to the Company pursuant to
Section 9A hereof. The Company will notify the Underwriters promptly in
the event that the Company does not make any such filing. The parties
hereto agree that the Company shall have no liability for any failure
to file such ABS Term Sheets on such dates if the related Underwriter
has not delivered such materials to the Company one business day prior
to the date such filing is to be made.
6. Conditions of the Underwriters' Obligation. The obligation of the
Underwriters to purchase and pay for the Offered Certificates of a Series as
provided herein and the Pricing Agreement shall be subject to the accuracy as of
the date hereof, the Execution Time and the applicable Closing Date (as if made
at such Closing Date) of the representations and warranties of the Company
contained herein (including those representations and warranties set forth in
the Pooling and Servicing Agreement and incorporated herein), to the accuracy of
the statements of the Company made in any certificate or other document
delivered pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder, and to the following additional conditions:
A. The Registration Statement shall have become effective no
later than the date hereof, and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
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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 Offered Certificates in form and substance
satisfactory to the Underwriters, duly executed by all signatories
required pursuant to respective terms thereof.
C. (1) The Underwriters shall have received the favorable opinion
of O'Melveny & ▇▇▇▇▇ LLP, special counsel to the Company, or of such
other counsel to the Company as shall be acceptable to the
Underwriters, such opinion or opinions, dated the Closing Date, in form
and substance satisfactory to the Underwriters, and collectively
covering the substantive matters referred to in Appendix A attached
hereto.
(2) The Underwriters shall have received the favorable opinion of
Stroock & Stroock & ▇▇▇▇▇ LLP, special counsel to the Underwriters,
dated the Closing Date, with respect to the Pooling and Servicing
Agreement, the Certificates of such Series, the due authorization,
execution and delivery of this Agreement and the Pricing Agreement, and
such other matters as the Underwriters may reasonably request.
In rendering their opinions, the counsel described in this
Paragraph C may rely, as to matters of fact, on certificates of
responsible officers of the Company, the Trustee and public officials.
Such opinions may also assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the
parties thereto other than the Company.
D. The Underwriters shall have received a letter from Price
Waterhouse LLP, dated the date of the Prospectus Supplement, in form
and substance satisfactory to the Underwriters, to the effect that they
have performed certain specified procedures requested by the
Underwriters with respect to the information set forth in the
Prospectus and certain matters relating to the Company.
E. The Fixed Rate Group Certificates, shall have been rated in
the highest rating category by ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's"), Standard & Poor's Ratings Services, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") and Fitch IBCA, Inc. ("Fitch"), and
such ratings shall not have been rescinded. The Class A-1A Certificates
shall have been rated "Aaa" by Moody's and "AAA" by Fitch, and such
ratings shall not have been rescinded. The Class M-1A Certificates
shall have been rated "Aa2 by Moody's and "AA+" by Fitch, and such
ratings shall not have been rescinded. The Class M-2A Certificates
shall have been rated "A2" by Moody's and "A+" by Fitch and such
ratings shall not have been rescinded. The Class B-1A Certificates
shall have been rated "Baa3" by Moody's and "BBB" by Fitch, and such
ratings shall not have been rescinded. The Underwriters and counsel for
the Underwriters shall have received copies, addressed to the
Underwriters and upon which they may rely, of any opinions of
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counsel supplied to the rating organizations relating to any matters
with respect to the Certificates. Any such opinions shall be dated the
Closing Date.
F. The Underwriters shall have received from the Company a
certificate, signed by the president, an executive vice president or a
vice president of the Company, dated the Closing Date, to the effect
that the signer of such certificate has carefully examined the
Registration Statement (excluding Form 8-K Computational Materials and
Form 8-K ABS Term Sheets), the Pooling and Servicing Agreement and this
Agreement and that, to the best of his or her knowledge based upon
reasonable investigation, the representations and warranties of the
Company in this Agreement, as of the Closing Date, in the Pooling and
Servicing Agreement and in all related agreements, as of the date
specified in such agreements, are true and correct, and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date
and that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the best of his or her knowledge, are contemplated by
the Commission.
The Company shall attach to such certificate an incumbency
certificate and shall certify in an officer's certificate a true and
correct copy of its articles of incorporation and bylaws which are in
full force and effect as of each relevant date and on the date of such
certificate and a certified true copy of the resolutions of its Board
of Directors with respect to the transactions contemplated herein.
G. The Underwriters shall have received a favorable opinion of
counsel to the Trustee, dated the Closing Date, in form and substance
satisfactory to the Underwriters and covering the substantive matters
referred to in Appendix B attached hereto.
In rendering such opinion, such counsel may rely, as to matters
of fact, on certificates of responsible officers of the Company, the
Trustee and public officials. Such opinion may also assume the due
authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the Trustee.
H. The Underwriters shall have received from the Trustee a
certificate, signed by the president, a senior vice president or a vice
president of the Trustee, dated the Closing Date, to the effect that
each person who, as an officer or representative of the Trustee, signed
or signs the Certificates, the Pooling and Servicing Agreement or any
other document delivered pursuant hereto, on the Execution Time or on
the Closing Date, in connection with the transactions described in the
Pooling and Servicing Agreement was, at the respective times of such
signing and delivery, and is now, duly elected or appointed, qualified
and acting as such officer or representative, and the signatures of
such persons appearing on such documents are their genuine signatures.
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I. The Policy relating to the Fixed Rate Group 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 has been no 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, in the earnings, business or operations (i) of the Company,
since the date of the Company's Recent Financial Statements, filed with
the Commission or (ii) the Insurer, that is in the Representative's
judgment material and adverse and that makes it in the Representative's
judgment impractical to market the Offered Certificates on the terms
and in the manner contemplated in the Prospectus.
N. The Underwriters and counsel for the Underwriters shall have
received copies of any separate opinions of counsel to the Company or
the Insurer supplied to the Trustee or any of S&P, Moody's or Fitch
relating to matters with respect to the Offered Certificates or the
Policy, and such opinions shall be dated the Closing Date and addressed
to the Underwriters and upon which they may rely.
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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 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 and the Company shall receive, subsequent to the
Closing Date, a letter from Price Waterhouse LLP, dated on or before the filing
of the Form 8-K - Mortgage Pool in form and substance satisfactory to the
Underwriters, to the effect that they have performed certain specified
procedures requested by the Underwriters with respect to the information set
forth in such Form 8-K - Mortgage Pool.
7. Expenses. If the sale of the Certificates of any Series provided for
herein is not consummated by reason of a default by the Company in its
obligations hereunder (including the failure to satisfy any of the conditions
specified in Section 6), except in the case of a termination of this Agreement
in accordance with Section 12 hereof, then the Company will reimburse the
Underwriters, upon demand, for all reasonable out-of-pocket expenses (including,
but not limited to, the reasonable fees and expenses of their counsel) that
shall have been incurred by them in connection with their investigation with
regard to the Company and the Offered Certificates and the proposed purchase and
sale of the Offered Certificates.
8. Indemnification and Contribution.
A. Regardless of whether any Offered Certificates are sold, the
Company will indemnify and hold harmless each Underwriter, each of
their respective officers and directors and each person who controls
any Underwriter within the meaning of the 1933 Act or the Exchange Act,
against any and all losses, claims, damages, or liabilities (including
the cost of any investigation, legal and other expenses incurred in
connection with and amounts paid in settlement of any action, suit,
proceeding or claim asserted), joint or several, to which they or any
of them may become subject, under the 1933 Act, the Exchange Act or
other federal or state law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of
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a material fact contained (i) in the Registration Statement or arise
out of or are based upon the omission or alleged omission (and in the
case of any Computational Materials, as to which a Mortgage Pool Error
(as defined below) occurred) to state therein a material fact necessary
to make the statements therein not misleading or (ii) in the Prospectus
or arise out of or are based upon the omission or alleged omission (and
in the case of any Computational Materials, as to which a Mortgage Pool
Error occurred) to state therein a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and will reimburse each such indemnified party
for any legal or other expenses reasonably incurred by it in connection
with investigating or defending against such loss, claim, damage,
liability or action; provided, however, that (a) the Company shall not
be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made
therein (x) in reliance upon and in conformity with written information
furnished to the Company by or on behalf of an Underwriter, as
described (and to the extent described) in Section 9A of this
Agreement, or (y) in the Form 8-K - Computational Materials or in any
Form 8-K - ABS Term Sheet, or any amendment or supplement thereof,
except to the extent that any untrue statement or alleged untrue
statement therein results (or is alleged to have resulted) directly
from, in the case of the Form 8-K - Computational Materials, any
Mortgage Pool Error, or, in the case of any Form 8-K - ABS Term Sheets,
any error in Company Provided Information that was used in the
preparation of (X) any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) included in the Form 8-K
Computational Materials or Form 8-K - ABS Term Sheets (or amendment or
supplement thereof), or (Y) any written or electronic materials
furnished to prospective investors on which the Computational Materials
or Collateral Term Sheets (or amendments or supplements) were based,
(b) such indemnity with respect to any Corrected Statement (as defined
below) in such Prospectus (or supplement thereto) shall not inure to
the benefit of such Underwriter (or any person controlling such
Underwriter) from whom the person asserting any loss, claim, damage or
liability purchased the Offered Certificates that are the subject
thereof if such person did not receive a copy of a supplement to such
Prospectus at or prior to the confirmation of the sale of such Offered
Certificates and the untrue statement or omission of a material fact
contained in such Prospectus (or supplement thereto) was corrected (a
"Corrected Statement") in such other supplement and such supplement
timely was furnished by the Company to such Underwriter within a
reasonable time prior to the delivery of such confirmation, and (c)
such indemnity with respect to any error in Company Provided
Information or any Mortgage Pool Error shall not inure to the benefit
of such Underwriter (or any person controlling such Underwriter) from
whom the person asserting any loss, claim, damage or liability received
any Computational Materials or ABS Term Sheets (or any written or
electronic materials on which the Computational Materials or any ABS
Term Sheets are based) that were prepared on the basis of such
erroneous Company Provided Information or Mortgage Pool Error, if,
within a reasonable time prior to the time of confirmation of the sale
of the applicable Offered Certificates to such person, the Company
notified such Underwriter in writing of such error or provided in
written or electronic form information superseding or correcting
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such error (in any such case, a "Corrected Error"), and such
Underwriter failed to notify such person thereof or to actually or
constructively deliver to such person corrected Computational Materials
or ABS Term Sheets (or underlying written or electronic materials).
This indemnity agreement will be in addition to any liability which the
Company may otherwise have. "Mortgage Pool Error" shall mean any error
or omission in the information concerning the characteristics of the
Mortgage Loans furnished by or on behalf of the Company to any of the
Underwriters in writing or by electronic transmission.
B. Regardless of whether any Offered Certificates are sold, each
Underwriter will severally indemnify and hold harmless the Company,
each of its officers and directors and each person, if any, who
controls the Company within the meaning of the 1933 Act or the Exchange
Act against any losses, claims, damages or liabilities to which they or
any of them become subject under the 1933 Act, the Exchange Act or
other federal or state law or regulation, at common law or otherwise,
to the same extent as the foregoing indemnity, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in (i) the Registration
Statement or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the
statements therein not misleading or in (ii) the Prospectus or arise
out of or are based upon the omission or alleged omission to state
therein a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading,
in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made therein (a) in reliance upon and in conformity with written
information relating to such Underwriter furnished to the Company by or
on behalf of such Underwriter, as described in Section 9A of this
Agreement, specifically for use in the preparation thereof and so
acknowledged in writing, or (b) any Computational Materials or ABS Term
Sheet (or amendments or supplements thereof) furnished to the Company
by such Underwriter pursuant to Section 9A hereof and incorporated by
reference in such Registration Statement or the related Prospectus or
any amendment or supplement thereof (except that no such indemnity
shall be available for any losses, claims, damages or liabilities, or
actions in respect thereof resulting from any error in Company Provided
Information or any Mortgage Pool Error, other than a Corrected Error),
and such Underwriter or the Underwriters, as the case may be, will
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
against such loss, claim, damage, liability or action.
C. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Paragraphs A and B above,
such person (hereinafter called the indemnified party) shall promptly
notify the person against whom such indemnity may be sought
(hereinafter called the indemnifying party) in writing thereof; but the
omission to notify the indemnifying party shall not relieve such
indemnifying party from any liability which it may have to any
indemnified party otherwise than under such Paragraph. The
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indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent
the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements
of such counsel related to such proceeding. In any such proceeding any
indemnified party shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, or
(ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them or because different defenses are available to such parties. It is
understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all such indemnified parties, and
that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the
Representative in the case of parties indemnified pursuant to Paragraph
A and by the Company in the case of parties indemnified pursuant to
Paragraph B. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but
if settled with such consent or if there is a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel as contemplated above, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
D. If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims,
damages or liabilities referred to herein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall:
(i) in the case of any such losses, claims, damages or
liabilities which do not arise out of or are not based upon any
untrue statement or omission of a material fact in any
Computational Materials or ABS Term Sheet (or any amendments or
supplements thereof) contribute to the amount paid or payable by
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such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to
reflect the relative benefits received by the Company and the
Underwriters from the sale of the Offered Certificates; and
(ii) in the case of any such losses, claims, damages or
liabilities which arise out of or are based upon any untrue
statements or omissions of a material fact in any Computational
Materials or ABS Term Sheet (or any amendments or supplements
thereof), contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect both
the relative benefits received by the Company and the
Underwriters from the sale of the Offered Certificates and the
relative fault of the Company and of the applicable Underwriter
or Underwriters in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations.
The relative benefits received by the Company and the
Underwriters shall be deemed to be in such proportion so that the
Underwriters are responsible for that portion determined by multiplying
the total amount of such losses, claims, damages or liabilities,
including legal and other expenses, by a fraction, the numerator of
which is (x) the excess of the Aggregate Resale Price of the Offered
Certificates of the related Series over the aggregate purchase price of
the Offered Certificates specified in the Pricing Agreement and the
denominator of which is (y) the Aggregate Resale Price of such Offered
Certificates, and the Company is responsible for the balance, provided,
however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of the immediately preceding sentence,
the "Aggregate Resale Price" of the Offered Certificates at the time of
any determination shall be the weighted average of the purchase prices
(in each case expressed as a percentage of the aggregate principal
amount of the Offered Certificates so purchased), determined on the
basis of such principal amounts, paid to the Underwriters by all
initial purchasers of the Offered Certificates from the Underwriters.
The relative fault of the Company and the Underwriters shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact of the omission or alleged
omission to state a material fact relates to information supplied by
the Company or by the applicable Underwriter or Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Underwriters' obligations in this Paragraph D to contribute are several
in proportion to their respective underwriting obligations and are not
joint.
E. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in Paragraph D. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in
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Paragraph D shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of Section 8D(i),
no Underwriter shall be required to contribute any amount by which the
difference between the Aggregate Resale Price and the aggregate
purchase price of the Offered Certificates specified in the Pricing
Agreement exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission.
F. The Company and the Underwriters each expressly waive, and
agree not to assert, any defense to their respective indemnification
and contribution obligations under this Section 8 which they might
otherwise assert based upon any claim that such obligations are
unenforceable under federal or state securities laws or by reasons of
public policy.
G. The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls the Underwriters within the meaning of the 1933 Act
or the Exchange Act; and the obligations of the Underwriters under this
Section 8 shall be in addition to any liability that the Underwriters
may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company and to each person, if any,
who controls the Company within the meaning of the 1933 Act or the
Exchange Act; provided, however, that in no event shall the Company or
the Underwriters be liable for double indemnification.
9. Information Supplied by Underwriters; Representations and Warranties
of the Underwriters.
A. The Underwriters and the Company agree that the following
constitute the only information furnished by or on behalf of the
Underwriters to the Company for the purposes of Sections 2B and 8A
hereof:
(i) the statements set forth in the last paragraph on the
front cover page of the Prospectus Supplement regarding market
making, and information 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
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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
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co. Incorporated,
and ▇▇▇▇▇▇ 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 "▇▇▇▇▇▇ Letters") for which the
filing of such material is a condition of the relief granted in such letters.
"ABS Term Sheet" shall mean those materials delivered by an Underwriter to the
Company in the form of "Structural Term Sheets" or "Collateral Term Sheets", in
each case within the meaning of the no-action letter dated February 13, 1995
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter") for which the filing of such material
is a condition of the relief granted in such letter. "Company Provided
Information" shall mean any information presented in any ABS Term Sheet (or
underlying materials) provided to the Underwriters by or on behalf of the
Company specifically for use in ABS Term Sheets in writing or through electronic
or magnetic data storage or transmission methods, in tabular, graphic or textual
form, regardless of whether or not such information is presented in any ABS Term
Sheets in the same format in which such information was provided to the
Underwriters, but shall not include (i) any such information to the extent that,
as presented in any ABS Term Sheet, such information contains, or is alleged to
contain, any untrue statement of a material fact or omits, or is alleged to
omit, to state any material fact required to be stated therein or necessary to
make the statements therein not misleading due to any (a) typographical or
similar error caused by any party other than the Company 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 Offered
Certificates which constitute or are deemed to constitute Computational
Materials or ABS Term Sheets, at least one business day before the date or dates
on which the related Form 8-K - Computational Materials or Form 8-K - ABS Term
Sheets relating to the Offered Certificates are required to be filed by the
Company with the Commission pursuant to Section 5K or 5L hereof.
22
24
B. Each Underwriter severally represents and warrants to and
agrees with the Company, that, as of the date of the related Closing
Date:
(i) any Computational Materials and ABS Term Sheets
furnished by it to the Company pursuant to Section 9A hereof
constitute (either in original, aggregated or consolidated form)
all of the materials furnished by it to prospective investors
prior to the time of delivery thereof to the Company and that it
reasonably believes that such materials constitute the type of
materials contemplated by the ▇▇▇▇▇▇ Letters and the PSA Letter;
and
(ii) on the date of delivery of any such Computational
Materials or ABS Term Sheets to the Company pursuant to this
Section 9 and on the related Closing Date such Computational
Materials and ABS Term Sheets (or materials) did not and will not
include any untrue statement of a material fact, or, when read in
conjunction with the related Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading.
Notwithstanding the foregoing, the Underwriters make no representation
or warranty as to whether any Computational Materials or ABS Term Sheets (or any
written or electronic materials on which such Computational Materials or ABS
Term Sheets are based) included or will include any untrue statement resulting
directly from any Mortgage Pool Error or, in the case of an ABS Term Sheet, any
error in Company Provided Information.
Each Underwriter agrees that it will not represent to investors that any
Computational Materials or ABS Term Sheets delivered thereto were prepared by,
or disseminated on behalf of, the Company.
10. Notices. All communications hereunder shall be in writing and, if
sent to the Underwriters, shall be mailed or delivered or telecopied and
confirmed in writing to the Representative at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage & Asset-Backed Finance Group, and, if
sent to the Company, shall be telegraphed and confirmed in writing to the
Company at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇; with a copy addressed to O'Melveny & ▇▇▇▇▇ LLP, ▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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.
23
25
12. Termination. The Underwriters shall have the right to terminate this
Agreement and/or the Pricing Agreement by giving notice as hereinafter specified
at any time at or prior to the applicable Closing Date if (a) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the Nasdaq
National Market, the Chicago Board Options Exchange, the Chicago Board of Trade
or the London Stock Exchange Limited, (b) trading of any securities of the
Company or AFC shall have been suspended on any exchange or in any
over-the-counter market, (c) a general moratorium on commercial banking
activities shall have been declared by any of the federal, California or New
York State authorities, (d) there shall have occurred any outbreak or escalation
of hostilities or any change in the national or international financial markets
or any calamity or crisis which, in the Representative's reasonable judgment, is
material and adverse, and, in the case of any of the events specified in clauses
(a) through (d), such event singly or together with any other such event makes
it in the Representative's reasonable judgment impractical to market the Offered
Certificates. Any such termination shall be without liability of any other party
except that the provisions of Paragraph G of Section 5 (except with respect
Section 5G(vii)) and Section 8 hereof shall at all times be effective. If the
Underwriters elect to terminate this Agreement and/or the Pricing Agreement as
provided in this Section 12, the Company shall be notified promptly by the
Representative by telephone, telegram or facsimile transmission, in any case,
confirmed by letter.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns
(which successors and assigns do not include any person on purchasing a
Certificate from the Underwriters), and the officers and directors and
controlling persons referred to in Section 8 hereof and their respective
successors and assigns, and no other persons will have any right or obligations
hereunder.
14. Applicable Law; Venue. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York. Any
action or proceeding brought to enforce or arising out of any provision of this
Agreement shall be brought only in a state or federal court located in the
Borough of Manhattan, New York City, New York, and the parties hereto expressly
consent to the jurisdiction of such courts and agree to waive any defense or
claim of forum non conveniens they may have with respect to any such action or
proceeding brought.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall together constitute but one and the same
instrument.
24
26
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President-Finance
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
For itself and as
Representative of the several
Underwriters named in Schedule I
to the Pricing Agreement
25
27
EXHIBIT A
March 23, 1998
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
as Representative of the several Underwriters
named in Schedule I to the Pricing Agreement
c/▇ ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Underwriting Agreement for Aames Mortgage Trust, dated March 23, 1998 the
"Underwriting Agreement") between Aames Capital Corporation ("Aames") and
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, as Representative of
the several Underwriters named in Schedule I to the Pricing Agreement
dated March 23, 1998 (the "Pricing Agreement")
--------------------------------------------------------------------------
Ladies and Gentlemen:
Pursuant to the Underwriting Agreement and Pricing Agreement
(collectively, the "Designated Agreement"), Aames has undertaken certain
financial obligations with respect to the indemnification of the Underwriters
with respect to the Registration Statement, and the Prospectus described in the
Designated Agreement. Any financial obligations of Aames under the Designated
Agreement, whether or not specifically enumerated in this paragraph, are
hereinafter referred to as the "Joint and Several Obligations;" provided,
however, that "Joint and Several Obligations" shall mean only the financial
obligations of Aames under the Designated Agreement (including the payment of
money damages for a breach of any of Aames' obligations under the Designated
Agreement, whether financial or otherwise) but shall not include any obligations
not relating to the payment of money.
As a condition of its execution of the Designated Agreement, the
Underwriters have required the undersigned, Aames Financial Corporation ("AFC"),
the parent corporation of Aames, to acknowledge its joint and several liability
with Aames for the payment of the Joint and Several Obligations under the
Designated Agreement.
Now, therefore, the Underwriters and AFC do hereby agree that:
Exhibit A-1
28
(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; provided however that this subparagraph shall not
require the Underwriters to seek satisfaction from any party other than
Aames or AFC with respect to the Joint and Several Obligations under the
Designated Agreement.
Exhibit A-2
29
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:
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
For itself and as
Representative of the several
Underwriters named in Schedule I
to the Pricing Agreement
Exhibit A-3
30
APPENDIX A
FORM OF OPINION OF
COUNSEL TO THE COMPANY
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of California.
2. AFC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
3. The Company has full corporate power and corporate authority to own
its assets and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under the Pooling and Servicing
Agreement, the Underwriting Agreement and Pricing Agreement (the "Documents").
4. AFC has full corporate power and corporate authority to own its
assets and to conduct its business as now being conducted and to enter into and
perform its obligations under the Letter Agreement.
5. The Company is duly qualified as a foreign corporation and is in
good standing under the laws of each jurisdiction where it owns or leases any
real property or has any permanently located employees.
6. The Company has all material licenses, franchises and permits of and
from all public, regulatory or governmental officials or bodies, necessary to
(i) conduct its business as now being conducted and as described in the
Prospectus, and (ii) perform its obligations under the Documents.
7. The execution, acknowledgment, delivery and performance by the
Company of the Documents have been duly authorized by all requisite corporate
action.
8. The execution, acknowledgment, delivery and performance by AFC of
the Letter Agreement have been duly authorized by all requisite corporate
action.
9. Neither the execution or delivery of, nor the performance by the
Company of its obligations under, the Documents, nor the offer, issuance, sale
or delivery of the Certificates (i) violates any of the provisions of the
Company's Articles of Incorporation or By-laws, (ii) violates any judgment,
decree, writ, injunction, award, determination or order known to such counsel
which is applicable to Company or any of its properties, or by which the Company
or any of its properties are bound or affected, (iii) conflicts with, or results
in a breach of, or constitutes a default under, any of the provisions of any of
the Company's material contracts, or (iv) results in the creation or imposition
of any lien on any of its properties pursuant to the terms of any of the Company
material contracts.
Appendix ▇-▇
▇▇
▇▇. Neither the execution or delivery of, nor the performance by AFC of
its obligations under, the Letter Agreement (i) violates any of the provisions
of AFC's Certificate of Incorporation or By-laws, (ii) violates any judgment,
decree, writ, injunction, award, determination or order known to such counsel
which is applicable to AFC or any of its properties, or by which AFC or any of
its properties are bound or affected, (iii) conflicts with, or results in a
breach of, or constitutes a default under, any of the provisions of any of AFC's
material contracts, or (iv) results in the creation or imposition of any lien on
any of its properties pursuant to the terms of any of AFC's material contracts.
11. No consent, approval or authorization from, or registration or
filing with or notice to, any court or governmental body is required to be
obtained, made or given by the Company in connection with its authorization,
execution, delivery of, or performance of its obligations under the Documents or
in connection with the issuance, sale or delivery of the Offered Certificates.
12. No consent, approval or authorization from, or registration or
filing with or notice to, any court or governmental body is required to be
obtained, made or given by AFC in connection with its authorization, execution,
delivery of, or performance of its obligations under the Letter Agreement.
13. Based upon such counsel's knowledge, there is no pending or
threatened action, suit, proceeding or investigation before or by any court,
administrative agency, arbitrator or governmental body against or affecting the
Company which, if decided adversely, would materially and adversely affect (i)
the ability of the Company to perform its obligations under, or the validity or
enforceability of, the Documents, (ii) any mortgaged property or title of any
mortgagor to such mortgaged property, or (iii) the Trustee's ability to
foreclose or otherwise enforce the liens of the mortgage loans.
14. The Registration Statement is effective under the 1933 Act and, to
the best of such counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued, or proceeding for that purpose
instituted or threatened by the Commission.
15. The Registration Statement as of its effective date and the
Prospectus as of the date there of, other than the Computational Materials,
numerical, financial and statistical data included or incorporated by reference
in the Registration Statement and the Prospectus, as to which such counsel need
not express an opinion, appeared on its face to be appropriately responsive in
all material respects to the applicable requirements of the 1933 Act and the
rules and regulations thereunder, except that such counsel need not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except for those as
contemplated by paragraph 20 and 21 below.
16. The execution and delivery of each of the Underwriting Agreement
and the Pricing Agreement has been duly authorized by all necessary corporate
action of the Company and each of the Underwriting Agreement and the Pricing
Agreement has been duly executed and delivered by the Company; the execution and
delivery of the Letter Agreement has been duly authorized by all necessary
corporate action of AFC and the Letter Agreement has been duly executed and
delivered by AFC.
Appendix ▇-▇
▇▇
▇▇. The execution and delivery of the Pooling and Servicing Agreement
has been duly authorized by the Company and the Agreement has been duly executed
and delivered by the Company and constitutes a valid, legal and binding
agreement of the Company, enforceable against the Company in accordance with its
terms except as enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, liquidation, receivership, moratorium or other
similar laws relating to or affecting creditors' rights generally or (b) general
principles of equity or public policy, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
18. The Offered Certificates will, when duly executed and authenticated
as specified in the Pooling and Servicing Agreement and delivered by the Trustee
on behalf of the Trust in exchange for the Mortgage Loans in the related
Mortgage Loan Group and the other assets conveyed by the Company to the Trust
pursuant to the Pooling and Servicing Agreement, be entitled to the benefits of
the Pooling and Servicing Agreement afforded to the related Class.
19. The Offered Certificates and the Pooling and Servicing Agreement
conform in all material respects to the descriptions thereof contained in the
Prospectus.
20. The statements in the base Prospectus and the Prospectus
Supplement, as the case may be, under the headings "Risk Factors," "Certain
Legal Aspects of the Mortgage Loans," "Certain Federal Income Tax
Considerations," and "ERISA Considerations," to the extent that they constitute
matters of California, New York or federal law or legal conclusions with respect
thereto, are correct in all material respects to the extent of those
consequences or aspects that are discussed.
21. Each of the REMIC Pools as described in the Pooling and Servicing
Agreement will qualify as a "real estate mortgage investment conduit" ("REMIC")
within the meaning of Section 860D of the Internal Revenue Code of 1986, as
amended (the "Code"), the Offered Certificates and Class C Certificates
described in the Prospectus and issued pursuant to the Pooling and Servicing
Agreement will be treated as "regular interests" in the REMIC for purposes of
Code Section 860G(a)(1) and the Class R Certificates issued pursuant to the
Pooling and Servicing Agreement will be treated as the "residual interest" in
the REMIC for purposes of Code Section 860G(a)(2), assuming: (i) an election is
made to treat each REMIC Pool as a REMIC, (ii) compliance with the Pooling and
Servicing Agreement and compliance with changes in the law, including any
amendments to the Code or applicable Treasury regulations thereunder. None of
the REMIC Pools will be subject to California income or franchise tax in effect
on the date of such opinion, as long as such REMIC Pool complies with any
changes in the statutory and regulatory requirements of California law. Such
counsel may state that a REMIC Pool may, however, be subject to California
income or franchise tax in certain circumstances where federal income tax is
also imposed, such as in the case of net income from foreclosure property; and
in addition, a REMIC Pool may be subject to the minimum tax imposed under the
California Revenue and Taxation Code Sections specified therein.
22. 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,
Appendix A-3
33
and neither the Company nor AFC is an "investment company" as such term is
defined, under the Investment Company Act of 1940, as amended.
23. Neither the transfer of the Mortgage Loans to the Trust, the
issuance and sale of the Offered Certificates to the Underwriters pursuant to
the Underwriting Agreement, the compliance by the Company with other provisions
of the Underwriting Agreement, the Pooling and Servicing Agreement and the
Certificates, nor the consummation of the transactions therein contemplated as
to the transfer of the Mortgage Loans and the sale of the Offered Certificates
by the Company require the consent, approval, authorization, order, registration
or qualification of or with any court or governmental authority, except such as
have been obtained or effected under the 1933 Act (and except with respect to
any consent, approval, authorization, registration or qualification which may be
required under state securities or Blue Sky laws or with respect to the purchase
and sale of the retained Certificates, as to which matters such counsel need not
express an opinion) and such other approvals as have been obtained, or conflict
with or result in a breach or violation of any of the terms and provisions of,
or constitute a default under, the charter or bylaws of the Company, or any
statute or regulation applicable to the Company or, to the best of such
counsel's knowledge, any judgment, decree or order applicable to the Company of
any court, regulatory body, administrative agency or other governmental
authority.
24. Assuming compliance with the provisions of the Pooling and
Servicing Agreement, and subject to the limitations and conditions set forth
therein, the Trustee and the Company, acting in its capacity as Servicer under
the terms of the Pooling and Servicing Agreement, will be entitled to enforce
the terms of each Note and Mortgage in accordance with their respective terms,
except to the extent such enforcement may be limited by (a) bankruptcy,
insolvency, reorganization, liquidation, receivership, moratorium or other
similar laws relating to or affecting creditors' rights generally or (b) general
principles of equity or public policy, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
In addition, such counsel shall state that nothing has come to their
attention that would lead them to believe that the Registration Statement (other
than the Computational Materials, the financial, numerical, statistical and
quantitative information included or incorporated by reference therein, as to
which such counsel need not make any statement), at the Effective Time,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus (other than the Computational Materials,
the financial, numerical, statistical and quantitative information included or
incorporated by reference therein, 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 ▇-▇
▇▇
▇▇▇▇▇▇▇▇ ▇
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
35
APPENDIX C
FORM OF OPINION OF COUNSEL TO INSURER
1. The Insurer is a stock insurance company duly organized, validly
existing and authorized to conduct financial guaranty insurance business under
the laws of the State of New York.
2. The Policy, the Insurance and Indemnity Agreement and the
Indemnification Agreement (the "Agreements") have been duly authorized, executed
and delivered by the Insurer.
3. The Policy and the Agreements constitute valid and binding
obligations of the Insurer, enforceable against the Insurer in accordance with
their terms subject, as to the enforcement of remedies, bankruptcy, insolvency,
reorganization, rehabilitation, moratorium and other similar laws affecting the
enforceability of creditors' rights generally applicable in the event of the
bankruptcy or insolvency of the Insurer and to the application of general
principles of equity and subject, in the case of the Indemnification Agreement,
to principles of public policy limiting the right to enforce the indemnification
provision contained therein insofar as they relate to indemnification for
liabilities arising under applicable securities laws.
4. The Policy is exempt from registration under the 1933 Act.
5. Neither the execution or delivery by the Insurer of the Policy or the
Agreements, nor the performance by the Insurer of its obligations thereunder,
will conflict with any provision of the certificate of incorporation or the
by-laws of the Insurer or, to the best of such counsel's knowledge, result in a
breach of, or constitute a default under any agreement or other instrument to
which the Insurer is a party to which it or any of its property is bound, or to
the best of such counsel's knowledge, violate any consent, order to decree
applicable to the Insurer of any governmental or regulatory body, administrative
agency, court or arbitrator having jurisdiction over the Insurer (except that in
the published opinion of the Commission the indemnification provisions of the
Indemnification Agreement, insofar as they relate to indemnification or
liabilities arising under the 1933 Act, are against public policy as expressed
in the 1933 Act and are therefore unenforceable).
In addition, please be advised such counsel has reviewed the description
of the Insurer under the caption "Certificate Insurer" in the Prospectus
Supplement (the "Offering Document") of the Transferor 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
Appendix C-1
36
misleading (except that such counsel need not express an opinion with respect to
any financial statements or other financial information contained or referred to
therein).
Appendix C-2
37
ANNEX A
AAMES CAPITAL CORPORATION
Mortgage Pass-Through Certificates
PRICING AGREEMENT
March 23, 1998
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation,
as Representative of the several Underwriters
named in Schedule I hereto
c/▇ ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Aames Capital Corporation (the "Company") proposes, subject to the terms
and condition stated herein and the Underwriting Agreement, dated March 23, 1998
(the "Underwriting Agreement"), between the Company and ▇▇▇▇▇▇▇▇▇, Lufkin &
▇▇▇▇▇▇▇▇ Securities Corporation, as underwriter and as Representative (in such
capacity, the "Representative" of the several underwriters named in Schedule I
hereto (together with the Representative, the "Underwriters"), to issue and sell
to the Underwriters the series of mortgage pass-through certificates specified
in Schedule II hereto (the "Certificates"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and warranty
with respect to the Prospectus in Section 1 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented with respect to the Certificates.
Each reference to Representative contained in the Underwriting Agreement shall
be deemed to refer to the Representative named herein. Unless otherwise defined
herein, terms in the Underwriting Agreement are used herein as therein defined.
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.
Annex A-1
38
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 plus, in the case of the Fixed Rate Group Certificates,
accrued interest at the applicable Pass-Through Rate from March 1, 1998.
Annex A-2
39
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:
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By:
----------------------------------
Name:
Title:
For itself and as
Representative of the several
Underwriters named in
Schedule I hereto
Annex A-3
40
SCHEDULE I
Principal Principal Principal Principal Principal
Amount of Amount of Amount of Amount of Amount of
Class A-1F Class A-2F Class A-3F Class A-4F Class A-5F
Underwriter Certificates Certificates Certificates Certificates Certificates
----------- ------------ ------------ ------------ ------------ ------------
▇▇▇▇▇▇▇▇▇, Lufkin
& ▇▇▇▇▇▇▇▇
Securities $33,825,000 $5,500,000 $15,125,000 $11,000,000 $8,800,000
Corporation
Prudential
Securities
Incorporated $18,450,000 $3,000,000 $ 8,250,000 $ 6,000,000 $4,800,000
NationsBanc
▇▇▇▇▇▇▇▇▇▇
Securities LLC $ 9,225,000 $1,500,000 $ 4,125,000 $ 3,000,000 $2,400,000
Principal Principal Principal Principal
Amount of Amount of Amount of Amount of
Class A-6F Class A-IO Class A-1A Class M-1A
Underwriter Certificates Certificates Certificates Certificates
----------- ------------ ------------ ------------ ------------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇
Securities $8,250,000 $15,000,000 $61,050,000 $8,250,000
Corporation
Prudential
Securities
Incorporated $4,500,000 $33,300,000 $4,500,000
NationsBanc
▇▇▇▇▇▇▇▇▇▇
Securities LLC $2,250,000 $16,650,000 $2,250,000
41
Principal Principal
Amount of Amount of
Class M-2A Class B-1A
Underwriter Certificates Certificates
----------- ------------ ------------
▇▇▇▇▇▇▇▇▇, Lufkin
& ▇▇▇▇▇▇▇▇
Securities $7,012,500 $6,187,500
Corporation
Prudential
Securities
Incorporated $3,825,000 $3,375,000
NationsBanc
▇▇▇▇▇▇▇▇▇▇
Securities LLC $1,912,500 $1,687,500
2
42
SCHEDULE II
Registration Statement No. 333-21219
Base ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Supplement dated March 25, 1998
Mortgage Pass-Through Certificates, Series 1998-A
Title of Certificates: Class A-1F
Amount of Certificates: $61,500,000
Pass-Through Rate: 6.26%
Purchase Price Percentage: 99.81875%
Cut-off Date: March 1, 1998
Closing: March 30, 1998
Denominations: $1,000.00 and integral multiples of $1.00 in
excess thereof.
Insurer: Financial Security Assurance Inc.
Title of Certificates: Class A-2F
Amount of Certificates: $10,000,000
Pass-Through Rate: 6.20%
Purchase Price Percentage: 99.784375%
Cut-off Date: March 1, 1998
Closing: March 30, 1998
Denominations: $1,000.00 and integral multiples of $1.00 in
excess thereof.
Insurer: Financial Security Assurance Inc.
Title of Certificates: Class A-3F
Amount of Certificates: $27,500,000
Pass-Through Rate: 6.27%
Purchase Price Percentage: 99.75%
43
Cut-off Date: March 1, 1998
Closing: March 30, 1998
Denominations: $1,000.00 and integral multiples of $1.00 in
excess thereof.
Insurer: Financial Security Assurance Inc.
Title of Certificates: Class A-4F
Amount of Certificates: $20,000,000
Pass-Through Rate: 6.50%
Purchase Price Percentage: 99.66875%
Cut-off Date: March 1, 1998
Closing: March 30, 1998
Denominations: $1,000.00 and integral multiples of $1.00 in
excess thereof.
Insurer: Financial Security Assurance Inc.
Title of Certificates: Class A-5F
Amount of Certificates: $16,000,000
Pass-Through Rate: 6.99%
Purchase Price Percentage: 99.453125%
Cut-off Date: March 1, 1998
Closing: March 30, 1998
Denominations: $1,000.00 and integral multiples of $1.00 in
excess thereof.
Insurer: Financial Security Assurance Inc.
Title of Certificates: Class ▇-▇▇
▇
▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇: $15,000,000
Pass-Through Rate: 6.46%
Purchase Price Percentage: 99.56875%
Cut-off Date: March 1, 1998
Closing: March 30, 1997
Denominations: $1,000.00 and integral multiples of $1.00 in
excess thereof.
Insurer: Financial Security Assurance Inc.
Title of Certificates: Class A-IO
Amount of Certificates: $15,000,000
Pass-Through Rate: 5.00% on any Distribution Date before April
2001; thereafter 0.0%
Purchase Price Percentage: 13.124493%
Cut-off Date: March 1, 1998
Closing: March 30, 1998
Denominations: $1,000.00 and integral multiples of $1.00 in
excess thereof.
Insurer: Financial Security Assurance Inc.
Title of Certificates: Class A-1A
Amount of Certificates: $111,000,000
Pass-Through Rate: LIBOR + 0.19% with respect to each Interest
Period preceding the Clean-up Call Date and,
LIBOR + 0.38% thereafter.
Purchase Price Percentage: 99.775%
3
45
Cut-off Date: March 1, 1998
Closing: March 30, 1998
Denominations: $25,000.00 and integral multiples of $1.00 in
excess thereof.
Title of Certificates: Class M-1A
Amount of Certificates: $15,000,000
Pass-Through Rate: LIBOR + 0.45% with respect to each Interest
Period preceding the Clean-up Call Date and
LIBOR + 0.675% thereafter.
Purchase Price Percentage: 99.55%
Cut-off Date: March 1, 1998
Closing: March 30, 1998
Denominations: $25,000.00 and integral multiples of $1.00 in
excess thereof.
Title of Certificates: Class M-2A
Amount of Certificates: $12,750,000
Pass-Through Rate: LIBOR + 0.65% with respect to each Interest
Period preceding the Clean-up Call Date and
LIBOR + 0.975% thereafter.
Purchase Price Percentage: 99.50%
Cut-off Date: March 1, 1998
Closing: March 30, 1998
Denominations: $1,000.00 and integral multiples of $1.00 in
excess thereof.
Title of Certificates: Class B-1A
4
46
Amount of Certificates: $11,250,000
Pass-Through Rate: LIBOR + 1.30% with respect to each Interest
Period preceding the Clean-up Call Date and
thereafter LIBOR + 1.95%.
Purchase Price Percentage: 99.44%%
Cut-off Date: March 1, 1998
Closing: March 30, 1998
Denominations: $25,000.00 and integral multiples of $1.00 in
excess thereof.
Representative with respect to the Offered ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Certificates: Securities Corporation
Location of Settlement: The offices of O'Melveny & ▇▇▇▇▇ LLP, ▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
5