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Exhibit 1.1
AAMES CAPITAL ACCEPTANCE CORPORATION
AND
THE UNDERWRITERS
UNDERWRITING AGREEMENT
FOR
AAMES CAPITAL OWNER TRUSTS
ASSET-BACKED BONDS,
ISSUABLE IN SERIES
MARCH 18, 1997
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March 18, 1997
Credit Suisse First Boston Corporation
as Representative of the several Underwriters
named in Schedule I to the Pricing Agreement
c/o Credit Suisse First Boston Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Aames Capital Acceptance Corporation (the "Transferor") 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 cause a Trust (each, a "Trust") to be formed
pursuant to an applicable trust agreement (a "Trust Agreement") to be dated as
of the applicable Cut-off Date (as defined in the Pricing Agreement), among the
Transferor and Wilmington Trust Company as owner trustee ( the "Owner Trustee")
to issue in series (each a "Series") and to sell to the Underwriters (as
hereinafter defined), Asset-Backed Bonds (the "Bonds"), each Series of which is
to be issued pursuant to an applicable indenture (an "Indenture") to be dated
as of the applicable Cut-off Date (as defined in the Pricing Agreement),
between the Trust and Bankers Trust Company of California, N.A., as indenture
trustee (the "Indenture Trustee"). Credit Suisse First Boston 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 (the "Certificates" and, together
with the Bonds, the "Securities") issued pursuant to a Trust Agreement will
evidence an undivided beneficial ownership interest in the related Trust
consisting primarily of a pool (the "Pool") of mortgage loans (the "Mortgage
Loans") conveyed by the Transferor to the related Trust pursuant to an
applicable mortgage loan contribution agreement (a "Mortgage Loan Contribution
Agreement") to be dated as of the applicable Cut-off Date (as defined in the
Pricing Agreement) between the Transferor and the Trust. The Mortgage Loans
and other property sold by the Transferor to the Trust will be acquired by the
Transferor from ACC pursuant to an applicable initial mortgage loan conveyance
agreement (an "Initial Mortgage Loan Conveyance Agreement") to be dated as of
the applicable Cut-Off Date (as defined in the Pricing Agreement) between the
Transferor and Aames Capital Corporation ("ACC"). The Mortgage Loans will be
serviced by ACC (in such capacity, the "Servicer") pursuant to a servicing
agreement (a "Servicing Agreement") to be dated as of the applicable Cut-Off
Date (as defined in the Pricing Agreement) among the Trust, the Servicer and
the Indenture Trustee. The Securities 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 Securities 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 Securities of any other Class or
Subclass of the same Series shall be specified in the Pricing Agreement. The
Bonds of a Series to be purchased pursuant to a Pricing Agreement will be
described more fully in the Base
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Prospectus dated March 18, 1997 and the related Prospectus Supplement (defined
below) which the Transferor will furnish to the Underwriters.
On or prior to the date of issuance of the Securities of any Series,
if specified in the Pricing Agreement, the Transferor will obtain one or more
certificate guaranty insurance policies (each a "Policy") issued by an
insurance provider specified in the Pricing Agreement (the "Insurer") which
will unconditionally and irrevocably guarantee for the benefit of the holders
of each Class of Bonds to be purchased pursuant to this Agreement, full and
complete payment of the amounts payable on the Bonds of the related Series.
As used herein, the term "Execution Time" shall mean the date and time
that the Pricing Agreement is executed and delivered by the parties thereto;
the term "Agreement," "this Agreement" and terms of similar import shall mean
this Underwriting Agreement including the Pricing Agreement; and the term
"Closing Date" shall mean the Closing Date specified in the Pricing Agreement.
All capitalized terms used but not otherwise defined herein have the respective
meanings set forth in the form of Servicing Agreement or Indenture heretofore
delivered to the Representative.
1. Securities. Unless otherwise specified in the Pricing
Agreement, the Securities of each Series will be issued in classes as follows:
(i) a class of Bonds with respect to each Mortgage Loan Group (which may
include two or more subclasses) and the Certificates (which may include two or
more subclasses).
2. Representations and Warranties of the Transferor. The
Transferor 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 securities backed by
mortgage loans from time to time, has been filed by the Transferor and
ACC 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
Transferor 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 Bonds.
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 Securities or the Pool and filed with the
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Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), except that if the Registration
Statement is amended by the filing with the Commission of a
post-effective amendment thereto, the term "Registration Statement"
shall mean collectively the Registration Statement, as amended by the
most recently filed post- effective amendment thereto, in the form in
which it was declared effective by the Commission. The prospectus
dated the date specified in the Pricing Agreement (which if not so
specified shall be the date of such Pricing Agreement), which
constitutes a part of the Registration Statement, together with the
prospectus 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 Bonds, 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. The Indenture, Trust Agreement, Servicing Agreement,
Initial Mortgage Loan Conveyance Agreement and Mortgage Loan
Contribution Agreement with respect to any Series shall be referred
to herein together as the "Basic Documents."
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 Transferor 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
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furnished to the Transferor by or on behalf of the Underwriters as
set forth in this Agreement or the Pricing Agreement specifically for
use in connection with the preparation of the Registration Statement
or the Prospectus and (ii) the Form 8-K - Computational Materials (as
defined in Section 5K below) or Form 8-K - ABS Term Sheets (as
defined in Section 5L below), or in any amendment thereof or
supplement thereto, incorporated by reference in such Registration
Statement or such Prospectus (or any amendment thereof or supplement
thereto).
C. The Transferor is duly organized, validly existing
and in good standing under the laws of the State of Delaware, 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 Transferor 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 Transferor, threatened, before
any court, governmental agency or body or other tribunal (i) asserting
the invalidity of this Agreement, the Securities, the Indemnification
Agreement dated as of the Execution Time (the "Indemnification
Agreement") among the Transferor, the Insurer and the Underwriters, or
of the Basic Documents, (ii) seeking to prevent the issuance of the
Securities or the consummation of any of the transactions contemplated
by this Agreement or the Basic Documents, (iii) which may,
individually or in the aggregate, materially and adversely affect the
validity or enforceability of, this Agreement, the Securities or the
Basic Documents, or the performance by the Transferor or ACC of their
respective obligations under this Agreement or any of the Basic
Documents to which either is a party or (iv) which may affect
adversely the federal income tax attributes of the Bonds as described
in the Prospectus.
E. The execution and delivery by the Transferor of this
Agreement, the Indemnification Agreement and the Basic Documents to
which it is a party, the direction by the Transferor to the Owner
Trustee and the Indenture Trustee, as applicable to execute,
countersign, authenticate and deliver the Securities and the transfer
and delivery of the Mortgage Loans to the Trust by the Transferor are
within the corporate power of the Transferor and have been, or will
be, prior to the Closing Date duly authorized by all necessary
corporate action on the part of the Transferor 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 Transferor or any of its affiliates is a party
or by which it or any
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of them is bound or to which any of the property of the Transferor or
any of its affiliates is subject, the Transferor's certificate of
incorporation or bylaws, or any order, rule or regulation of any
court, governmental agency or body or other tribunal having
jurisdiction over the Transferor, 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 Bonds by the Transferor. Neither the Transferor nor
any of its affiliates is a party to, bound by or in breach or
violation of any indenture or other agreement or instrument, or
subject to or in violation of any statute, order, rule or regulation
of any court, governmental agency or body or other tribunal having
jurisdiction over the Transferor or any of its affiliates, which
materially and adversely affects, or may in the future materially and
adversely affect, (i) the ability of either the Transferor or ACC to
perform their respective obligations under the Basic Documents to
which either is a party, this Agreement or the Indemnification
Agreement or (ii) the business, operations, results of operations,
financial position, income, properties or assets of the Transferor or
ACC.
F. This Agreement and the Indemnification Agreement have
been duly and validly authorized, executed and delivered by the
Transferor. The Basic Documents to which it is a party will be duly
executed and delivered by the Transferor and will constitute the
legal, valid and binding obligations of the Transferor enforceable in
accordance with their respective terms, except as enforceability may
be limited by (i) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors, and (ii) general principles of
equity, whether enforcement is sought in a proceeding at law or in
equity.
G. The Bonds will conform in all material respects to
the description thereof contained in the Prospectus and, when the
Bonds have been duly and validly executed by the Owner Trustee or an
agent thereof on behalf of the Trust and when executed and
authenticated in accordance with the Indenture and delivered to and
paid for by the Underwriters as provided herein and the Pricing
Agreement, the Bonds will be legal, valid and binding obligations of
the Trust pursuant to the terms of the Indenture, entitled to the
benefits of the Indenture.
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 Basic Documents are
hereby made to the Underwriters as though set out herein, and at the
dates specified in the Basic Documents, such representations and
warranties were or will be true and correct in all material respects.
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I. The transfer of the Mortgage Loans by ACC to the
Transferor at the Closing Date will be treated by ACC for financial
accounting and reporting purposes as a sale of assets and not as a
pledge of assets to secure debt.
J. The Transferor 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 Transferor, threatened, relating to the
revocation or modification of any such license, certificate, permit or
other authorization which singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would materially and
adversely affect the business, operations, results of operations,
financial position, income, property or assets of the Transferor.
K. Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement, the
Indemnification Agreement and the Basic Documents, or the execution
and issuance of the Securities 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 Transferor, its parent company or its subsidiaries
or affiliates, taken as a whole, from the date of the end of the most
recent fiscal quarter of ACC for which financial statements (whether
audited or unaudited) have been made publicly available (the "Date of
Recent ACC Financial Statements"), to the date hereof.
M. The Basic Documents will conform in all material
respects to the description thereof contained in the Prospectus.
N. The Transferor 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 Bonds, (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 Bonds 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 Basic Documents is based on forms recently utilized by
ACC with respect to mortgaged properties located in the appropriate
jurisdiction and used in the regular course of ACC's business. Based
on ACC'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 Indenture.
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P. Neither the Transferor, ACC 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"). Neither the Trust Agreement nor the Servicing Agreement is
required to be qualified under the Trust Indenture Act of 1939, as
amended.
Q. In connection with the offering of the Securities in
the State of Florida, the Transferor 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 Transferor and delivered
to the Underwriters in connection with the sale of the Bonds to such
Underwriters shall be deemed a representation and warranty as to the matters
covered thereby by the Transferor 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 Transferor
that upon the execution of the Pricing Agreement and authorization by
the Underwriters of the release of the Bonds of the related Series,
the Underwriters shall offer such Bonds 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 Bonds 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 Bonds 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 Bonds
only if that person is of a kind described in
Article 11(3) of the Financial Services Act
of 1986 (Investment Advertisements)
(Exceptions) Order 1995, as
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amended, or such person is one to whom the
document can lawfully be issued or passed on;
(iv) no action has been or will be taken by such
Underwriter that would permit a public
offering of the Bonds or distribution of the
Prospectus or Prospectus Supplement or any
Computational Materials or any other offering
material in relation to the Bonds in any
non-U.S. jurisdiction where action for that
purpose is required unless the Transferor 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 Bonds and
with the distribution of the Prospectus or
Prospectus Supplement or any Computational
Materials or any other offering material in
relation to the Bonds in, to or from any
non-U.S. jurisdiction, the Transferor has not
taken and will not take any action, and such
Underwriter will not offer, sell or deliver
any Bonds or distribute the Prospectus or
Prospectus Supplement or any Computational
Materials or any other offering material
relating to the Bonds 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
Transferor or the other Underwriters.
4. Purchase, Sale and Delivery of the Bonds. The Transferor
hereby agrees, subject to the terms and conditions hereof, to sell or cause the
Trust to sell, the Bonds 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 Bonds in the amounts set forth in Schedule I to such Pricing Agreement. At
the time of issuance of the Bonds, the Mortgage Loans will be conveyed by the
Transferor to the Trust pursuant to the Mortgage Loan Contribution Agreement.
ACC will be obligated, under the Servicing Agreement, to service the Mortgage
Loans either directly or through subservicers.
The Bonds to be purchased by the Underwriters will be delivered 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 Transferor.
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Settlement shall take place at the specified offices of ▇▇▇▇▇▇▇ &
▇▇▇▇▇ L.L.P., at 10:00 a.m., New York City time, on the date specified in the
Pricing Agreement, or at such other place and at such other time thereafter
(such time being herein referred to as the "Closing Date"), in each case as the
Underwriters and the Transferor shall determine. The Bonds 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.
The Transferor agrees to have the Bonds 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 Transferor. The Transferor covenants and
agrees with each Underwriter that:
A. The Transferor will promptly advise the
Representative and counsel to the Underwriters (i) when any amendment
to the Registration Statement relating to the offering of the Bonds
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 Bonds, (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 Transferor of any notification with respect to
the suspension of the qualification of the Bonds for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Transferor will not file, and it will use its best
efforts to prevent ACC 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 Bonds
unless the Transferor 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 Transferor will
use its best efforts to prevent the issuance of any stop order
suspending the effectiveness of the Registration Statement and, if
issued, to obtain as soon as possible the withdrawal thereof.
B. If, at any time during the period in which the
Prospectus is required by law to be delivered, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fat or omit to state any
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if
it shall be necessary to amend or supplement the Prospectus to comply
with the 1933 Act or the rules under the 1933 Act, the Transferor will
promptly prepare and file with the Commission and shall use its best
efforts to cause ACC 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
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required to be contained in a post-effective amendment to the
Registration Statement, will use its best efforts to cause such
post-effective amendment of the Registration Statement to become
effective as soon as possible, provided, however, that the Transferor
will not be required to file any such amendment or supplement with
respect to any Computational Materials or ABS Term Sheets incorporated
by reference in the Prospectus other than any amendments or
supplements of such Computational Materials or ABS Term Sheets that
are furnished to the Transferor by the Underwriters pursuant to
Section 9A hereof which the Transferor is required to file in
accordance with Section 5K or 5L.
C. The Transferor 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
Transferor will pay the expenses of printing all offering documents
relating to the offering of the Bonds.
D. As soon as practicable, but not later than sixteen
months after the effective date of the Registration Statement, the
Transferor will cause the Trust to make generally available to holders
of Bonds 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 Transferor nor any affiliate of the
Transferor will, without the Representative's prior written consent
(which consent shall not be unreasonably withheld), enter into any
agreement to offer or sell securities backed by mortgage loans, except
pursuant to this Agreement.
F. So long as any of the Bonds are outstanding, the
Transferor will cause to be delivered to the Underwriters, (i) all
documents required to be distributed to the holders of the Bonds, (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 Owner Trustee or
Indenture Trustee pursuant to the Basic Documents, (iv) the annual
statement of a firm of independent public accountants furnished to the
Owner Trustee or Indenture Trustee pursuant to the Basic Documents as
soon as such statement is filed by the Transferor with the Commission
and (v) any information required to be delivered by the Transferor or
the Servicer pursuant to Section 3.01 of the Servicing Agreement
heretofore delivered to the Representative.
G. The Transferor, whether or not the transactions
contemplated hereunder are consummated or this Agreement or the
Pricing Agreement is consummated, will pay
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all expenses in connection with the transactions contemplated herein,
including but not limited to (i) the expenses of printing (or
otherwise reproducing) all documents relating to the offering and the
fees and disbursements of its counsel incurred in connection with the
issuance and delivery of the Bonds, (ii) the preparation of all
documents specified in this Agreement, (iii) any fees and expenses of
the Owner Trustee, the Indenture Trustee, the Insurer and any other
credit support provider (including legal fees) that are not payable by
or from the Trust, (iv) any accounting fees and disbursements relating
to the offering of Bonds, (v) any fees charged by rating agencies for
rating the Bonds, (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 Bonds 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 Transferor will not pay the fees and expenses of the Underwriters
or their counsel except as specified above.
H. The Transferor will enter into the Basic Documents to
which it is a party and all related agreements on or prior to the
Closing Date.
I. The Transferor will endeavor to qualify the Bonds 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 Bonds for investment under the laws of such
jurisdiction as the Underwriters may reasonably designate, if any.
J. The Transferor will file or cause to be filed with
the Commission within fifteen days of the termination of the Funding
Period, 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 Transferor will cause any Computational Materials
(as defined in Section 9A hereof) with respect to the Bonds which are
delivered by any Underwriter to the Transferor 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 Transferor shall have no obligation to
file any such materials which, in the reasonable determination of the
Transferor after consultation with such Underwriter (i) are not, based
upon the advice of outside counsel to the Transferor, required to be
filed pursuant to the ▇▇▇▇▇▇ Letters (as defined in Section 9A hereof
or (ii) contain any
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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 Transferor 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 Transferor
pursuant to Section 9A hereof. The parties hereto agree that the
Transferor 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 Transferor one business day prior
to the date such filing is to be made.
L. The Transferor will cause any ABS Term Sheets (as
defined in Section 9A hereof with respect to the Bonds which are
delivered by any Underwriter to the Transferor 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 Transferor shall have no
obligation to file any such materials which, in the reasonable
determination of the Transferor after consultation with such
Underwriter (i) are not, based upon advice of outside counsel to the
Transferor, 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 Transferor 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 Transferor pursuant to Section 9A hereof.
The parties hereto agree that the Transferor 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 Transferor
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 Bonds 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 Transferor
contained herein (including those representations and warranties set forth in
the Basic Documents to which it is a party and incorporated herein), to the
accuracy of the statements of the Transferor made in any certificate or other
document delivered pursuant to the provisions hereof, to the performance by the
Transferor 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 Basic
Documents and the Bonds in form and substance satisfactory to the
Underwriters, duly executed by all signatories required pursuant to
respective terms thereof.
C. (1) The Underwriters hall have received the
favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., special counsel to the
Transferor, or of such other counsel to the Transferor 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 Basic
Documents, the Bonds 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 Transferor, the Owner Trustee, the
Indenture 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
Transferor.
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 Transferor.
E. The Bonds shall have been rated in the highest rating
category by Standard & Poor's Corporation, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") and ▇▇▇▇▇'▇ Investors Service,
Inc. ("Moody's"), and such ratings shall not have been rescinded. The
Underwriters and counsel for the Underwriters shall have received
copies, addressed to the Underwriters and upon which they may rely, of
any opinions of counsel supplied to the rating organizations relating
to any matters with respect to the Bonds. Any such opinions shall be
dated the Closing Date.
F. The Underwriters shall have received from the
Transferor a certificate, signed by the president, an executive vice
president or a vice president of the Transferor, 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 Basic
Documents and this Agreement and that, to
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the best of his or her knowledge based upon reasonable investigation,
the representations and warranties of the Transferor in this
Agreement, as of the Closing Date, in the Basic Documents and in all
related agreements, as of the date specified in such agreements, are
true and correct, the Transferor 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 Transferor 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 from ACC a
certificate, signed by the president, an executive vice president or a
vice president of ACC, dated the Closing Date, to the effect that the
signer of such certificate has carefully examined the Basic Documents
to which it is a party and that, to the best of his or her knowledge
based upon reasonable investigation, the representations and
warranties of ACC in the Basic Documents to which it is a party and in
all related agreements, as of the date specified in such agreements,
are true and correct, ACC 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, that 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 ACC, its parent company or its
subsidiaries or affiliates, taken as a whole, from the Date of Recent
ACC Financial Statements to the date hereof, that the transfer of the
Mortgage Loans by ACC to the Transferor at the Closing Date will be
treated by ACC for financial accounting and reporting purposes as a
sale of assets and not as a pledge of assets to secure debt, 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.
ACC 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.
H. The Underwriters shall have received a favorable
opinion of counsel to the Indenture 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.
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In rendering such opinion, such counsel may rely, as to
matters of fact, on certificates of responsible officers of the
Transferor, the Indenture 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 Indenture Trustee.
I. The Underwriters shall have received from the
Indenture Trustee a certificate, signed by the president, a senior
vice president or a vice president of the Indenture Trustee, dated the
Closing Date, to the effect that each person who, as an officer or
representative of the Indenture Trustee, signed or signs the
Securities, the Basic Documents or any other document delivered
pursuant hereto, on the Execution Time or on the Closing Date, in
connection with the transactions described in the Basic Documents 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.
J. The Underwriters shall have received a favorable
opinion of counsel to the Owner Trustee, 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
Transferor, the Owner 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 Owner Trustee.
K. The Underwriters shall have received from the Owner
Trustee a certificate, signed by the president, a senior vice
president or a vice president of the Owner Trustee, dated the Closing
Date, to the effect that each person who, as an officer or
representative of the Owner Trustee, signed or signs the Securities,
the Basic Documents or any other document delivered pursuant hereto,
on the Execution Time or on the Closing Date, in connection with the
transactions described in the Basic Documents 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.
L. The Underwriters shall have received a favorable
opinion of counsel to the Trust, dated the Closing Date, in form and
substance satisfactory to the Underwriters and covering the
substantive matters referred to in Appendix D attached hereto.
In rendering such opinion, such counsel may rely, as to
matters of fact, on certificates of responsible officers of the
Transferor and public officials. Such opinion
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may also assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto
other than the Trust.
M. The Policy relating to the Bonds 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.
N. 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 E attached hereto.
In rendering such opinion, such counsel may rely, as to
matters of fact, on certificates of responsible officers of the
Transferor, the Owner Trustee, the Indenture 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.
O. 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 Transferor, ACC or their affiliates
relating to any previously issued securities backed by mortgage loans
of the Transferor, ACC or their affiliates by any "nationally
recognized statistical rating organization" (as such term is defined
for purposes of the Exchange Act).
P. On or prior to the Closing Date there shall not have
occurred any downgrading, nor shall any notice have been given of (i)
any intended or potential downgrading or (ii) any review or possible
change in rating the direction of which has not been indicated, in the
rating accorded the Insurer's claims paying ability by any "nationally
recognized statistical rating organization" (as such term is defined
for purposes of the Exchange Act).
Q. There has not occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, since the Date
of Recent ACC Financial Statements, of (i) the Transferor, its parent
company, ACC or its subsidiaries or (ii) the Insurer, that is in the
Representative's judgment material and adverse and that makes it in
the Representative's judgment impracticable to market the Bonds on the
terms and in the manner contemplated in the Prospectus.
R. The Underwriters and counsel for the Underwriters
shall have received copies of any separate opinions of counsel to the
Transferor or the Insurer supplied to the Owner Trustee, the Indenture
Trustee or either of S&P or Moody's relating to matters
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with respect to the Securities or the Policy, and such opinions shall
be dated the Closing Date.
S. 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.
T. There shall have been executed and delivered by Aames
Financial Corporation, the corporate parent of the Transferor ("AFC"),
a letter agreement with the Underwriters, pursuant to which AFC agrees
to become jointly and severally liable with the Transferor 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 for 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 Transferor in writing, or by telephone or telegraph confirmed in
writing.
The Underwriters shall receive, subsequent to the Closing Date, a
letter from Price Waterhouse LLP, dated on or before the filing of the Form 8-K
- Mortgage Pool in form and substance satisfactory to the Underwriters, to the
effect that they have performed certain specified procedures requested by the
Underwriters with respect to the information set forth in such Form 8-K -
Mortgage Pool.
7. Expenses. If the sale of the Bonds of any Series provided for
herein is not consummated by reason of a default by the Transferor 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 Transferor 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 Transferor and the Bonds and the proposed
purchase and sale of the Bonds.
8. Indemnification and Contribution.
A. Regardless of whether any Bonds are sold, the
Transferor 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
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several, to which they or any of them may become subject, under the
1933 Act, the Exchange Act or other federal or state law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained (i) in the Registration Statement or arise out of or are
based upon the omission or alleged omission (and in the case of any
Computational Materials, as to which a Mortgage Pool Error (as defined
below) occurred) to state therein a material fact necessary to make the
statements therein not misleading or (ii) in the Prospectus or arise
out of or are based upon the omission or alleged omission (and in the
case of any Computational Materials, as to which a Mortgage Pool Error
occurred) to state therein a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and will reimburse each such indemnified party
for any legal or other expenses reasonably incurred by it in connection
with investigating or defending against such loss, claim, damage,
liability or action; provided, however, that (a) the Transferor 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 Transferor 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 Transferor 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 Bonds 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 Bonds 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
Transferor to such Underwriter within a reasonable time prior to the
delivery of such confirmation, and (c) such indemnity with respect to
any error in Transferor 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
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prepared on the basis of such erroneous Transferor Provided
Information or Mortgage Pool Error, if, within a reasonable time prior
to the time of confirmation of the sale of the applicable Bonds to
such person, the Transferor notified such Underwriter in writing of
such error or provided in written or electronic form information
superseding or correcting such error (in any such case, a "Corrected
Error"), and such Underwriter failed to notify such person thereof or
to actually or constructively deliver to such person corrected
Computational Materials or ABS Term Sheets (or underlying written or
electronic materials). This indemnity agreement will be in addition
to any liability which the Transferor 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 Transferor to any of the Underwriters in writing or
by electronic transmission.
B. Regardless of whether any Bonds are sold, each
Underwriter, will severally indemnify and hold harmless the
Transferor, each of its officers and directors and each person, if
any, who controls the Transferor 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 Transferor 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 Transferor 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 Transferor 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 Transferor for any legal or other expenses reasonably incurred by
the Transferor 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
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to Paragraphs A and B above, such person (hereinafter called the
indemnified party) shall promptly notify the person against whom such
indemnity may be sought (hereinafter called the indemnifying party) in
writing thereof; but the omission to notify the indemnifying party
shall not relieve such indemnifying party from any liability which it
may have to any indemnified party otherwise than under such Paragraph.
The indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party
may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention
of such counsel, or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them or because different defenses are
available to such parties. It is understood that the indemnifying
party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties, and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Representative in the case of parties
indemnified pursuant to Paragraph A and by the Transferor in the case
of parties indemnified pursuant to Paragraph B. The indemnifying
party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent
or if there is a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated
above, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by
such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such proceeding.
D. If the indemnification provided for in this Section 8
is unavailable to an indemnified party in respect of any losses,
claims, damages or liabilities referred to herein, then each
indemnifying party, in lieu of indemnifying such indemnified party,
shall:
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(i) in the case of any such losses, claims, damages or
liabilities which do not arise out of or are not
based upon any untrue statement or omission of a
material fact in any Computational Materials or ABS
Term Sheet (or any amendments or supplements thereof)
contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is
appropriate to reflect the relative benefits received
by the Transferor and the Underwriters from the sale
of the Bonds; 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 Transferor and
the Underwriters from the sale of the Bonds and the
relative fault of the Transferor 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 Transferor 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 Bonds of the related Series over the aggregate purchase price of
the Bonds specified in the Pricing Agreement and the denominator of
which is (y) the Aggregate Resale Price of such Bonds, and the
Transferor 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 Bonds 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 Bonds so
purchased), determined on the basis of such principal amounts, paid
to the Underwriters by all initial purchasers of the Bonds from the
Underwriters. The relative fault of the Transferor 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 Transferor 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'
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obligations in this Paragraph D to contribute are several in
proportion to their respective underwriting obligations and are not
joint.
E. The Transferor and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable
considerations referred to in Paragraph D. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in Paragraph D shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of Section 8D(i), no Underwriter shall
be required to contribute any amount by which the difference between
the Aggregate Resale Price and the aggregate purchase price of the
Bonds 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 Transferor 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 Transferor under this Section
8 shall be in addition to any liability which the Transferor 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 Transferor
and to each person, if any, who controls the Transferor within the
meaning of the 1933 Act or the Exchange Act; provided, however, that
in no event shall the Transferor or the Underwriters be liable for
double indemnification.
9. Information Supplied by Underwriters; Representations and
Warranties of the Underwriters.
A. The Underwriters and the Transferor agree that the
following constitute the only information furnished by or on behalf of
the Underwriters to the Transferor 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
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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 Transferor by or on behalf of such
Underwriter to be filed in the related Current Report
on Form 8-K, in each case excluding any Transferor
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 Transferor 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
Transferor 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. "Transferor 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
Transferor specifically for use in ABS Term sheets in writing or through
electronic or magnetic data storage or transmission methods, in tabular,
graphic or textual form, regardless of whether or not such information is
presented in any ABS Term Sheets in the same format in which such information
was provided to the Underwriters, but shall not include (i) any such
information to the extent that, as presented in any ABS Term Sheet, such
information contains, or is alleged to contain, any untrue statement of a
material fact or omits, or is alleged to omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading due to any (a) typographical or similar error or (b) stylistic,
contextual or other presentational considerations with respect to such ABS Term
Sheets, including the format of tables, the phraseology of text or the
placement or juxtaposition of such information in relation to any other
information presented therein (whether or not Transferor 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 Transferor 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 Transferor
(or
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counsel to the Transferor) a complete copy of all materials (which, if
reasonably requested by the Transferor, shall be on computer compatible disk or
such other acceptable electronic form) provided by such Underwriter to
prospective investors in such Bonds 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 Bonds are required to
be filed by the Transferor with the Commission pursuant to Section 5K or 5L
hereof.
B. Each Underwriter severally represents and warrants to
and agrees with the Transferor, that, as of the date of the related
Closing Date:
(i) any Computational Materials and ABS Term Sheets
furnished by it to the Transferor 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 Transferor 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 Transferor
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 Transferor 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 Transferor.
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 and, if sent to the Transferor,
shall be mailed, delivered or telegraphed and confirmed in writing to the
Transferor at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇; with a copy addressed to ▇▇▇▇▇▇▇ & ▇▇▇▇▇
L.L.P., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III.
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26
11. Survival. All representations, warranties, covenants and
agreements of the Transferor contained herein or in agreements or certificates
delivered pursuant hereto, the agreements of the Underwriters and the
Transferor 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 Transferor or any of its officers, directors or any
controlling persons, and shall survive delivery of and payment for the Bonds.
The provisions of Sections 5, 7 and 8 hereof shall survive the termination or
cancellation of this Agreement or any Pricing Agreement.
12. Termination. The Underwriters shall have the right to
terminate this Agreement and/or the Pricing Agreement by giving notice as
hereinafter specified at any time at or prior to the applicable Closing Date if
(a) trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the Nasdaq National Market, the Chicago Board Options Exchange, the
Chicago Board of Trade or the London Stock Exchange Limited, (b) trading of any
securities of the Transferor 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 Bonds. 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 Transferor
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 Bond
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.
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15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall together constitute but one and the same
instrument.
16. Amendments and Waivers. This Agreement may be amended,
modified, altered or terminated, and any of its provisions waived, only in a
writing signed on behalf of the parties hereto.
Very truly yours,
AAMES CAPITAL ACCEPTANCE
CORPORATION
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Finance
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇
Title: Vice President
For itself and as
Representative of the several
Underwriters named in Schedule I
to the Pricing Agreement
27
28
EXHIBIT A
March 18, 1997
Credit Suisse First Boston Corporation
as Representative of the several Underwriters
named in Schedule I to the Pricing Agreement
c/o Credit Suisse First Boston Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Underwriting Agreement for Aames Capital Owner Trusts, dated March 18,
1997 the "Underwriting Agreement") between Aames Capital Acceptance
Corporation (the "Transferor") and Credit Suisse First Boston Corporation
as Representative of the several Underwriters named in Schedule I to the
Pricing Agreement dated March 18, 1997 (the "Pricing Agreement")
___________________________________________
Ladies and Gentlemen:
Pursuant to the Underwriting Agreement and Pricing Agreement
(collectively, the "Designated Agreement"), the Transferor 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 the
Transferor 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 the Transferor under the
Designated Agreement (including the payment of money damages for a breach of
any of the Transferor's 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 the Transferor, to acknowledge its joint and
several liability with the Transferor for the payment of the Joint and Several
Obligations under the Designated Agreement.
Now, therefore, the Underwriters and AFC do hereby agree that:
Exhibit A-1
29
(i) AFC hereby agrees to be absolutely and unconditionally jointly and
severally liable with the Transferor 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 the Transferor or
another affiliate of AFC.
Exhibit A-2
30
Capitalized terms used herein and not defined herein shall have their
respective meanings as set forth in the Designated Agreement.
Very truly yours,
AAMES FINANCIAL CORPORATION
By:
______________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: ___________________________________
Name:
Title:
For itself and as
Representative of the several
Underwriters named in Schedule I
to the Pricing Agreement
Exhibit A-3
31
APPENDIX A
FORM OF OPINION OF
COUNSEL TO THE COMPANY
1. The Transferor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
2. ACC is a corporation duly organized, validly existing and in
good standing under the laws of the State of California.
3. AFC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
4. The Transferor 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 Basic
Documents, the Underwriting Agreement and Pricing Agreement and the
Indemnification Agreement (the "Documents").
5. ACC 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 Documents to which it is a party.
6. 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.
7. Each of ACC and the Transferor 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.
8. Each of ACC and the Transferor 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 to which it is a party.
9. The execution, acknowledgment, delivery and performance by ACC
and the Transferor of the Documents to which it is a party have been duly
authorized by all requisite corporate action.
10. The execution, acknowledgment, delivery and performance by AFC
of the Letter Agreement have been duly authorized by all requisite corporate
action.
Appendix ▇-▇
▇▇
▇▇. The Transferor has duly authorized and executed the written
order to the Owner Trustee to execute and deliver the Issuer Order to the
Indenture Trustee. The Transferor has duly authorized and executed the written
order to the Owner Trustee to execute and deliver the Certificates.
12. Neither the execution or delivery of, nor the performance by
the Transferor of its obligations under, the Documents to which it is a party,
nor the offer, issuance, sale or delivery of the Securities (i) violates any of
the provisions of the Transferor'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 Transferor or any of its
properties, or by which the Transferor 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 Transferor'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 Transferor material
contracts.
13. Neither the execution or delivery of, nor the performance by
ACC of its obligations under, the Documents to which it is a party (i) violates
any of the provisions of ACC'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 ACC or any of its properties, or
by which ACC 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 ACC'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 ACC's material contracts.
14. 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.
15. 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 Transferor 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 Securities.
16. 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 ACC in connection with its authorization, execution,
delivery of, or performance of its obligations under Documents.
17. 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
Appendix A-2
33
with its authorization, execution, delivery of, or performance
of its obligations under the Letter Agreement.
18. 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
Transferor or ACC which, if decided adversely, would materially and adversely
affect (i) the ability of the Transferor or ACC 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
Indenture Trustee's ability to foreclose or otherwise enforce the liens of the
mortgage loans.
19. 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.
20. The Registration Statement as of its effective date and the
Prospectus as of the date there of, other than the Computational Materials,
numerical, financial and statistical data included or incorporated by reference
in the Registration Statement and the Prospectus, as to which such counsel need
not express an opinion, complied as to form in all material respects with the
requirements of the 1933 Act and the rules thereunder.
21. The execution and delivery of each of the Underwriting
Agreement, the Pricing Agreement and the Indemnification Agreement has been
duly authorized by all necessary corporate action of the Transferor and each of
the Underwriting Agreement, the Pricing Agreement and the Indemnification
Agreement has been duly executed and delivered by the Transferor; 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.
22. The execution and delivery of the Documents to which it is a
party have been duly authorized by the Transferor and each of the Documents to
which it is a party have been duly executed and delivered by the Transferor and
constitutes the valid, legal and binding agreements of the Transferor,
enforceable against the Transferor 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.
23. The execution and delivery of the Documents to which it is a
party have been duly authorized by ACC and each of the Documents to which it is
a party have been duly executed and delivered by ACC and constitutes a valid,
legal and binding agreement of ACC, enforceable against ACC in accordance with
their 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
Appendix A-3
34
public policy, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
24. The execution and delivery of the Insurance and Indemnity
Agreement has been duly authorized by the Transferor and the Insurance and
Indemnity Agreement has been duly executed and delivered by the Transferor and
constitutes a valid, legal and binding agreement of the Transferor, enforceable
against the Transferor in accordance with its terms except (i) as enforcement
thereof may be limited by (a) bankruptcy, insolvency, reorganization,
liquidation, receivership, moratorium or other similar laws relating to or
affecting creditors' rights generally or (b) general principles of equity or
public policy, regardless of whether such enforceability is considered in a
proceeding in equity or at law, and (ii) as the rights to indemnification or
contribution thereunder may be limited by federal or state securities laws.
25. The Bonds will, when duly executed and authenticated as
specified in the Indenture and delivered by the Owner Trustee on behalf of the
Trust in exchange for the Mortgage Loans and the other assets conveyed by the
Transferor to the Trust pursuant to the Basic Documents, be validly issued,
outstanding and entitled to the benefits of the Indenture.
26. The Bonds and the Documents conform in all material respects
to the descriptions thereof contained in the Prospectus.
27. 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.
28. The Bonds will be treated as debt for federal income tax
purposes. The Trust will not be treated as an association taxable as a
corporation or as a publicly traded partnership taxable as a corporation.
29. Neither the Trust Agreement nor the Initial Mortgage Loan
Conveyance Agreement is required to be qualified under the Trust Indenture Act
of 1939, as amended, and the Trust is not required to be registered, and
neither the Transferor, ACC nor AFC is an "investment company" as such term is
defined, under the Investment Company Act of 1940, as amended.
30. The form of Indenture has been qualified under the Trust
Indenture Act of 1939, as amended.
31. Neither the transfer of the Mortgage Loans to the Trust, the
issuance and sale of the Bonds to the Underwriters pursuant to the Underwriting
Agreement, the compliance by the Transferor with other provisions of the
Underwriting Agreement, the Documents and the Securities, nor the consummation
of the transactions therein contemplated as to the transfer of
Appendix A-4
35
the Mortgage Loans and the sale of the Bonds by the Transferor 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 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 Transferor, or any
statute or regulation applicable to the Transferor or, to the best of such
counsel's knowledge, any judgment, decree or order applicable to the Transferor
of any court, regulatory body, administrative agency or other governmental
authority.
32. Assuming compliance with the provisions of the Basic
Documents, and subject to the limitations and conditions set forth therein, the
Trust and ACC, acting in its capacity as Servicer under the terms of the
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.
33. The Indenture creates in favor of the Indenture Trustee a
security interest in the [Trust Estate] in favor of the Indenture Trustee on
behalf of the Noteholders to the extent that a security interest in such [Trust
Estate] can be created under Article 9 of the UCC as currently in effect in the
State of California. Upon delivery of the Mortgage Notes to the Indenture
Trustee, the Indenture Trustee will have a first priority perfected security
interest in the Mortgage Notes.
34. The Indenture is effective to create a valid security interest
in the Trust Account Property which constitutes "money" as defined in Section
1-201(24) of the UCC ("Money") and "instruments" as defined in Section
9-105(1)(i) of the UCC (but excluding any instruments constituting Certificated
Securities) ("Instruments") in favor of the Indenture Trustee for the benefit
of the Noteholders, to secure the obligations of the Trust, as set forth in the
Indenture. The security interest of the Indenture Trustee in that portion of
the Trust Account Property which constitutes Money or Instruments will be
perfected upon delivery thereof to the Indenture Trustee in the State of
California. Upon such delivery, no other security interest of any other
creditor of the Trust will be equal or prior to the security interest of the
Indenture Trustee in such Money or Instruments.
35. In the case of Trust Account Property which constitutes
Clearing Corporation Securities, Certificated Securities, Uncertificated
Securities and Federal Book-Entry Securities, the "transfer" (within the
meaning of Section 8-313 of the UCC) of such securities to the Indenture
Trustee, together with the Indenture, is effective to create a valid and
perfected security interest in such securities. Upon such transfers no other
security interest of any other creditor of the Trust or the Transferor,
respectively, will be equal or prior to the security interest of the
Appendix A-5
36
Indenture Trustee in the related securities. "Transfer" of the related
securities to the Indenture Trustee will occur upon Delivery thereof as
provided in the Documents.
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 INDENTURE TRUSTEE
1. The Indenture 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 Indenture and perform the obligations of trustee thereunder.
2. The Indenture has been duly authorized, executed, and delivered by
the Indenture Trustee and constitutes the legal, valid, and binding obligation
of the Indenture Trustee enforceable against the Indenture 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 Indenture by the Indenture
Trustee and the performance by the Indenture 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 Indenture Trustee, or (B) the Articles of Association or
By-laws of the Indenture 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
Indenture Trustee is required in connection with its execution and delivery of
the Indenture or the performance by the Indenture Trustee of the terms of the
Indenture.
5. The Indenture Trustee has the power and authority to perform its
duties pursuant to Sections 6.01 and 6.02 of the Servicing Agreement to act as
a successor servicer, including the making of advances as described in Sections
6.01 and 6.02 of the Servicing Agreement.
6. The Bonds have been duly executed, authenticated and delivered by
the Indenture Trustee.
Appendix B-1
38
APPENDIX C
FORM OF OPINION OF
COUNSEL TO THE OWNER TRUSTEE
1. The Owner Trustee is duly incorporated and validly existing as a
____________under the laws of the ______________ and has the power and
authority to execute and deliver the Trust Agreement.
2. The execution and delivery of the Trust Agreement by the Owner
Trustee and the performance by the Owner Trustee of its obligations under the
Trust Agreement have been duly authorized by all necessary action of the Owner
Trustee and the Trust Agreement has been duly executed and delivered by the
Owner Trustee.
3. The Trust Agreement constitutes valid and binding obligations of
the Owner Trustee enforceable against the Owner Trustee in accordance with its
terms, except as the enforceability thereof may be (a) limited by bankruptcy,
insolvency, reorganization, moratorium, liquidation or other similar laws
affecting the rights of creditors generally, and (b) subject to general
principals of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
4. The execution and delivery by the Owner Trustee of the Trust
Agreement and the transactions contemplated thereby do not require any consent,
approval or authorization of, or any registration or filing with, any
applicable governmental authority of the State of Delaware which has not been
obtained or done.
5. Neither the consummation by the Owner Trustee of the transactions
contemplated in the Trust Agreement, nor the fulfillment of the terms thereof
by the Owner Trustee will conflict with, result in a breach or violation of, or
constitute a default under the charter or the other organizational documents of
the Owner Trustee.
Appendix C-1
39
APPENDIX D
FORM OF OPINION OF
COUNSEL TO THE TRUST
1 The Trust Agreement is the legal, valid and binding
agreement of the Owner Trustee and the Transferor, enforceable against
the Owner Trustee, and the Transferor in accordance with its terms
subject to (i) applicable bankruptcy, insolvency, moratorium,
receivership, reorganization, fraudulent conveyance and similar laws
relating to and affecting the rights and remedies of creditors
generally, (ii) principles of equity (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the effect
of applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
2 The Certificate of Trust has been duly filed with the
Secretary of State of the State of Delaware. The Trust has been duly
formed and is validly existing as a business trust under the Delaware
Business Trust Act.
3 The Trust has the power and authority under the Trust
Agreement and the Delaware Business Trust Act to execute, deliver and
perform its obligations under the Basic Documents to which it is a
party, the Bonds and the Certificates, and to issue the Bonds and the
Certificates.
4 The Trust has duly authorized and executed the Basic
Documents to which it is a party, the Bonds and the Certificates.
5 The Trust has the power under the Trust Agreement and
the Delaware Business Trust Act to pledge the Trust Estate to the
Indenture Trustee as security for the Bonds.
6 The Certificates have been executed, authenticated
and delivered by the Owner Trustee upon the order of the Transferor
in accordance with the Trust Agreement and when delivered to and paid
for, the Certificates will be validly issued and outstanding, and the
holder of record of any such Certificates will be entitled to the
benefits accorded by the Trust Agreement subject to (i) applicable
bankruptcy, insolvency, moratorium, receivership, reorganization,
fraudulent conveyance and similar laws relating to and affecting the
rights and remedies of creditors generally, (ii) principles of equity
(regardless of whether considered and applied in a proceeding in
equity or at law), and (iii) the effect of applicable public policy on
the enforceability of provisions relating to indemnification or
contribution.
Appendix ▇-▇
▇▇
▇ The Bonds have been executed, authorized and
delivered by the Owner Trustee upon the order of the Transferor in
accordance with the Trust Agreement and the Indenture.
8 Under Section 3805(b) of the Delaware Business Trust
Act, no creditor of any Certificateholder shall have any right to
obtain possession of, or otherwise exercise legal or equitable
remedies with respect to, the property of the Trust except in
accordance with the terms of the Trust Agreement subject to (i)
applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent conveyance and similar laws relating to and
affecting the rights and remedies of creditors generally, (ii)
principles of equity (regardless of whether considered and applied in
a proceeding in equity or at law), and (iii) the effect of applicable
public policy on the enforceability of provisions relating to
indemnification or contribution.
9 The execution and delivery by the Owner Trustee of
the Trust Agreement and, on behalf of the Trust, of the Indenture, the
Mortgage Loan Contribution Agreement and the Servicing Agreement do
not require any consent, approval or authorization of, or any
registration or filing with, any governmental authority of the State
of Delaware, except for the filing of the Certificate of Trust with
the Secretary of State.
10 Neither the consummation by the Owner Trustee of the
transactions contemplated by the Trust Agreement or, on behalf of the
Trust, the transactions contemplated by the Trust Agreement, Indenture,
Mortgage Loan Contribution Agreement and the Servicing Agreement nor
the fulfillment of the terms thereof by the Owner Trustee will conflict
with or result in a breach or violation of any law of the State of
Delaware.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the Federal law of the United States of America and the
laws of the State of Delaware.
Appendix D-2
41
APPENDIX E
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,
Appendix E-1
42
as of the date of the Offering Document or as of the date of such opinion,
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not misleading (except
that such counsel need not express an opinion with respect to any financial
statements or other financial information contained or referred to therein).
Appendix E-2
43
ANNEX A
AAMES CAPITAL CORPORATION
Adjustable Rate Asset Backed Bonds
PRICING AGREEMENT
March 18, 1997
Credit Suisse First Boston Corporation,
as Representative of the several Underwriters
named in Schedule I hereto
c/o Credit Suisse First Boston Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Aames Capital Acceptance Corporation (the "Transferor") proposes, subject to
the terms and condition stated herein and the Underwriting Agreement, dated
March 18, 1997 (the "Underwriting Agreement"), between the Transferor and
Credit Suisse First Boston 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 asset- backed bonds specified
in Schedule II hereto (the "Bonds"). 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
Bonds. Each reference to Representative contained in the Underwriting
Agreement shall be deemed to refer to the Representative named herein. Unless
otherwise defined herein, terms in the Underwriting Agreement are used herein
as therein defined.
Annex A-1
44
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Bonds in the form heretofore
delivered to you is now proposed to be filed or, in the case of a supplement,
mailed for filing with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Transferor agrees
to issue and sell to the Underwriters, and the Underwriters, severally and not
jointly, agree to purchase from the Transferor, at the time and at the purchase
price set forth in Schedule II hereto, the aggregate amount of each Class of
Bonds set forth opposite the name of such Underwriter set forth in Schedule I
hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, and upon acceptance hereof by you,
this letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between the Underwriters and the Transferor.
Very truly yours,
AAMES FINANCIAL CORPORATION
By:
--------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
------------------------------------
Name:
Title:
For itself and as
Representative of the several
Underwriters named in Schedule I
to the Pricing Agreement
Annex A-2
45
SCHEDULE I
Principal
Amount of
Underwriter Bonds
----------- ------------
Credit Suisse First Boston Corporation $166,000,000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation $124,500,000
Prudential Securities Incorporated $ 62,250,000
▇▇▇▇▇▇ Brothers Inc. $ 62,250,000
Total $415,000,000
46
SCHEDULE II
Registration Statement No. 333-21219
Base ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Supplement dated ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇ of Bonds: $415,000,000 (approximate)
Initial Interest Rate: LIBOR plus .20%
Purchase Price Percentage: 99.75%
Cut-off Date: March 1, 1997
Closing: March 26, 1997
Denominations: $1,000.00 and integral multiples of $1.00 in excess
thereof.
Representative with respect to the Bonds Credit Suisse First Boston
Corporation
Insurer: Financial Security Assurance Inc.
Location of Settlement: The offices of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
