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Exhibit 1.2
[TRANSFEROR]
AND
THE UNDERWRITERS
UNDERWRITING AGREEMENT
FOR
AAMES CAPITAL OWNER TRUSTS
ASSET-BACKED BONDS,
ISSUABLE IN SERIES
[ DATE ]
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[DATE]
[Underwriter]
as Representative of the several
Underwriters named in Schedule I to the
Pricing Agreement [c/o Credit Suisse
First Boston Corporation]
[Underwriter/Address]
The [transferor] (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 [Name of Trustee] owner 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 [Name of Indenture Trustee], as indenture trustee (the "Indenture
Trustee"). [Name of Underwriter], 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 Aames Capital Corporation ("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 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 Prospectus dated [_______]and the related
Prospectus Supplement (defined below) which the Transferor will furnish to the
Underwriters.
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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. [_____])
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 Aames Capital Acceptance Corp. ("ACAC") 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 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
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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 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
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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 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,
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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.
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.
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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.
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.
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.
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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) (Exemptions) Order 1997
or such person is one to whom the document can lawfully be issued
or passed on;
(iv) no action has been or will be taken by such Underwriter that
would 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
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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.
Settlement shall take place at the specified offices of
[______________], at [____], [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 [_______] [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
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effectiveness of the Registration Statement and, if issued, to obtain as soon as
possible the withdrawal thereof.
B. If, at any time during the period in which the Prospectus is
required by law to be delivered, any event occurs as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the 1933 Act or the rules under the 1933 Act, the
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 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
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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 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 EDGAR 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 8-K (the "Form 8-K - Computational
Materials") at or before the time of filing of the Prospectus
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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 Kidder Letters (as defined in
Section 9A hereof or (ii) contain any erroneous information or untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; it being
understood, however, that the 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
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been issued and no proceedings for that purpose shall have been instituted or
threatened, and the Prospectus shall have been filed pursuant to Rule 424(b) of
the 1933 Act as shall be required pursuant to such Rule.
B. The Underwriters shall have received the 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
[____________], 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
[____________], 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 [ ], 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 McGraw-Hill Companies, Inc.
("S&P") and Moody's 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 the best of his or her knowledge
based
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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.
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.
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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 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.
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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 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 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 [ ], the
corporate parent of the Transferor, 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
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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 [_____________], 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 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
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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 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
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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 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
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into more than 30 days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
D. If the indemnification provided for in this Section 8 is unavailable
to an indemnified party in respect of any losses, claims, damages or liabilities
referred to herein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall:
(i) in the case of any such losses, claims, damages or liabilities
which do not arise out of or are not based upon any untrue
statement or omission of a material fact in any Computational
Materials or ABS Term Sheet (or any amendments or supplements
thereof) contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the
relative benefits received by the 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 1933 Act) 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
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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' 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.
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:
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(i) the statements set forth in the last paragraph on the front
cover page of the Prospectus Supplement regarding market making,
and information under the heading "Underwriting" in the
Prospectus Supplement, to the extent such information relates to
all of the Underwriters and not to any particular Underwriter or
affiliate of any particular Underwriter, have been supplied by or
on behalf of all of the Underwriters jointly;
(ii) the information under the heading "Underwriting" in the
Prospectus Supplement, to the extent such information relates to
a particular Underwriter or affiliate of such Underwriter, and
the information contained in any Form 8-K - Computational
Materials and in any Form 8-K - ABS Term Sheets to the extent
supplied to the 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
Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated,
and Kidder 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 "Kidder 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
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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 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.
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 Kidder 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 [3731 Wilshire Boulevard, Los Angeles, California 90010, Attention:________];
with a copy addressed to [________________________________________________].
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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,
TRANSFEROR
By:
-------------------------------------------
Name:
Title:
[NAME OF UNDERWRITER]
By:
-------------------------------------
Name:
Title:
For itself and as
Representative of the several
Underwriters named in Schedule I
to the Pricing Agreement
24
26
EXHIBIT A
[ Date ]
[Name of Underwriter]
as Representative of the several Underwriters
named in Schedule I to the Pricing Agreement
c/o [Underwriter/Address]
Re: Underwriting Agreement for Aames Capital Owner Trusts, dated [_____]
(the "Underwriting Agreement") between [Transferor] (the
"Transferor") and [Underwriter] as Representative of the several
Underwriters named in Schedule I to the Pricing Agreement dated
[_____________] (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, [Parent ("Parent")], 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 the Parent do hereby agree that:
(i) the Parent 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.
Exhibit A
27
(ii) the Parent 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 the Parent.
Capitalized terms used herein and not defined herein shall have their
respective meanings as set forth in the Designated Agreement.
Very truly yours,
[PARENT]
By:
---------------------------------------
Name:
Title:
[NAME OF UNDERWRITER]
By:
-------------------------------------
Name:
Title:
For itself and as
Representative of the several
Underwriters named in Schedule I
to the Pricing Agreement
Exhibit A
28
APPENDIX A
FORM OF OPINION OF
COUNSEL TO THE COMPANY
The Transferor is a corporation duly organized, validly existing and in
good standing under the laws of the State of [Delaware].
ACC is a corporation duly organized, validly existing and in good
standing under the laws of the State of California.
AFC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
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").
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.
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.
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.
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.
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. The execution, acknowledgment, delivery and
performance by AFC of the Letter Agreement have been duly authorized by all
requisite corporate action.
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
Appendix A
29
authorized and executed the written order to the Owner Trustee to execute and
deliver the Certificates.
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.
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.
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.
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.
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.
No consent, approval or authorization from, or registration or filing
with or notice to, any court or governmental body is required to be obtained,
made or given by AFC in connection with its authorization, execution, delivery
of, or performance of its obligations under the Letter Agreement.
Appendix A
30
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.
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. 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.
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.
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.
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 public policy, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
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
Appendix A
31
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.
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.
The Bonds and the Documents conform in all material respects to the
descriptions thereof contained in the Prospectus.
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.
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.
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.
The form of Indenture has been qualified under the Trust Indenture Act
of 1939, as amended.
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 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
Appendix A
32
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.
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.
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.
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.
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 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
Appendix A
33
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 A
34
APPENDIX B
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
35
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
36
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.
7. 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
Appendix D
37
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
38
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, as of the date of
the Offering Document or as of the date of such opinion, contained or contains
any untrue statement of a material fact or omitted or omits to state a material
fact necessary to
Appendix E
39
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
40
ANNEX A
AAMES CAPITAL ACCEPTANCE CORP.
Adjustable Rate Asset Backed Bonds
PRICING AGREEMENT
[ Date ]
[Name of Undewriter]
as Representative of the several Underwriters
named in Schedule I hereto
[c/o Underwriter/Address]
Ladies and Gentlemen:
Transferor (the "Transferor") proposes, subject to the terms and
condition stated herein and the Underwriting Agreement, dated [__________] (the
"Underwriting Agreement"), between the Transferor and [Underwriter], 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.
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
Annex A
41
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,
[TRANSFEROR]
By:
---------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[NAME OF UNDERWRITER]
By:
-------------------------------------
Name:
Title:
For itself and as
Representative of the several
Underwriters named in
Schedule I hereto
Annex A
42
SCHEDULE I
UNDERWRITER PRINCIPAL AMOUNT OF BONDS
Total $
Schedule I
43
SCHEDULE II
Registration Statement No. [___________]
Base Prospectus [Date]
Prospectus Supplement dated [__________]
Amount of Bonds: [_________] (approximate)
Initial Interest Rate: LIBOR plus .[__%]
Purchase Price Percentage: [__%]
Cut-off Date:
Closing:
Denominations: [________________________________].
Representative with respect to the Bonds [Name of Underwriter]
Insurer:
Location of Settlement:
Schedule II