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EXHIBIT 10.22(e)
FOURTH AMENDMENT TO
RESIDUALS FINANCING AGREEMENT
THIS FOURTH AMENDMENT TO RESIDUALS FINANCING AGREEMENT (this
"Amendment") is made and dated as of the 9th day of April, 1999, by and among
AAMES CAPITAL CORPORATION, a California corporation (the "Company"), AAMES
FINANCIAL CORPORATION, a Delaware corporation and the sole shareholder of the
Company (the "Parent"), and NATIONSBANK, N.A., a national banking association
(the "Lender").
RECITALS
A. Pursuant to that certain Residuals Financing Agreement dated as of
September 4, 1998 among the Company, the Parent and the Lender (as amended,
extended and replaced from time to time, the "Agreement" and with capitalized
terms used herein and not otherwise defined herein used with the meanings given
such terms in the Agreement), the Lender agreed to extend credit to the Company
on the terms and subject to the conditions set forth therein.
B. The Company wishes to pledge certain Eligible Servicing Receivables
(as defined below) to Lender as collateral to create a borrowing base for a
working capital credit facility in replacement of the current credit facility
under the Agreement and the Lender has agreed to provide such replacement credit
facility on certain terms and conditions, all as set forth more particularly
below.
NOW, THEREFORE, in consideration of the above Recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1. Revolving Credit Facility. To reflect the agreement of the parties
hereto to replace the existing credit facility in the Agreement with a revolving
credit facility to be supported by a borrowing base consisting of Eligible
Servicing Receivables, effective as of the Fourth Amendment Effective Date (as
defined in Paragraph 10 below):
(a) Paragraph 1 of the Agreement is hereby amended to read in its
entirety as follows:
"1. Revolving Credit Facility.
1(a) Revolving Credit Limit. On the terms and
subject to the conditions set forth herein, the Lender agrees that it
shall from time to time to but not including the Maturity Date (as such
term and capitalized terms not otherwise
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defined herein are defined in Paragraph 11 below) makes loans (the
"Revolving Loans" or a "Revolving Loan") to the Company in an amount not
to exceed, in the aggregate at any one time outstanding, the lesser of:
(1) The Revolving Credit Limit; and
(2) The Collateral Value of the Borrowing
Base.
1(b) Payment of Revolving Loans. Subject to the
prepayment requirements of Paragraph 3(f) below and the interest rate
conversion and continuation provisions of Paragraph 2(c) below, the
Company shall pay the principal amount of each Revolving Loan on the
Maturity Date."
(b) Paragraph 2(a) of the Agreement is hereby amended by deleting
the phrase "and, following the Conversion Date, the Term Loan and portions
thereof," from the second line thereof and the phrase "and the Term Loan" from
the eighth line thereof.
(c) Paragraph 2(c)(1) of the Agreement is hereby amended by
deleting the phrase "or, following the Conversion Date, the Term Loan" from the
eleventh and twelfth lines thereof.
(d) Paragraph 2(i) of the Agreement is hereby amended to read in
its entirety as follows:
"2(i) Facility Fee. The Company shall pay to the
Lender from the Fourth Amendment Effective Date to and including the
Maturity Date, monthly, in arrears, and on the Maturity Date for such
month or portion thereof, a non-usage fee in the amount set forth in a
fee billing delivered by the Lender to the Company, which non-usage fee
shall equal: (1) the average daily Revolving Credit Limit in effect
during such month (or portion thereof), minus the daily average
outstanding amount of Revolving Loans during such month (or portion
thereof), multiplied by (2) the product of: (i) one-eighth of one
percent (0.125%), and (ii) a fraction, the numerator of which is the
number of days in the applicable calculation period and the denominator
of which is 360."
(e) Paragraph 3(a) of the Agreement is hereby amended to read in
its entirety as follows:
"3(a) Use of Proceeds. The proceeds of Revolving
Loans shall be utilized by the Company for working capital purposes."
(f) Paragraph 3(b)(2) of the Agreement is hereby amended to
delete the phrase "Collateral Value of the Residuals Borrowing Base" in the
fourth line thereof and inserting in its place the phrase "Collateral Value of
the Borrowing Base".
(g) Paragraphs 3(d)(1), 3(d)(2) and 3(d)(3) of the Agreement are
hereby amended to read in their entirety as follows:
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"(1) In support of its obligations to repay
Revolving Loans hereunder, the Company shall cause (i) the Collateral
Value of the Borrowing Base to be not less than, at any date, the sum of
the aggregate principal amount of Revolving Loans outstanding on such
date, including any such Revolving Loans to be funded on such date, (ii)
the Collateral Value of the Residuals Collateral to be not less than, on
any date, one and one-quarter (1.25) times the Revolving Credit Limit on
such date. The Company may from time to time request the Lender to
release and/or substitute from the Lien in favor of the Lender under the
Security Agreement certain items of collateral, including Residual
Mortgage-Backed Securities, and the Lender shall promptly notify the
Company whether, in its sole and absolute discretion, the Lender will
agree to do so. The Company may also from time to time deliver
additional Eligible Servicing Receivables to be included in the
Borrowing Base by written notice to the Lender. The Company shall
identify in such written notice the servicing agreement(s) pursuant to
which such Eligible Servicing Receivables arose (the "Additional
Servicing Agreements") and shall state that such Eligible Servicing
Receivables are being pledged as Collateral under the Security
Agreement. The Company shall also attach to such written notice a
replacement Schedule 1 to the Security Agreement, restating therein the
list of all the servicing agreements the related Eligible Servicing
Receivables of which were already included in the Borrowing Base and
adding thereto the Additional Servicing Agreements. Pursuant to the
terms of the Security Agreement, Schedule 1 to the Security Agreement
shall be deemed replaced by such replacement Schedule 1 and such
Eligible Servicing Receivables shall be included in the Borrowing Base.
(2) In the event on any date that the Collateral
Value of the Borrowing Base is less than the sum of the aggregate
principal amount of Revolving Loans outstanding on such date, upon
telephonic demand by the Lender, the Company shall pay to the Lender, no
later than the following Business Day, an amount to prepay the Revolving
Loans equal to the amount by which the sum of the aggregate principal
amount of Revolving Loans outstanding on the date of payment by the
Company exceeds the Collateral Value of the Borrowing Base on the date
of payment by the Company. If, but only if, at such time as the Company
shall be required to prepay Revolving Loans under this subparagraph
3(d)(2) there shall not have occurred and be continuing an Event of
Default or Potential Default, in lieu of making a principal prepayment,
the Company may deliver to the Lender additional Eligible Servicing
Receivables such that the aggregate principal balance of Revolving Loans
outstanding does not exceed the Collateral Value of the Borrowing Base.
(3) In the event the Lender shall determine on any
date that the Collateral Value of the Residuals Collateral is less than
one and one-quarter (1.25) times the Revolving Credit Limit on such
date, the Lender may, in its sole discretion, elect to deliver to the
Company (which delivery may be by facsimile transmission) a Collateral
Valuation Report so demonstrating. Upon such
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delivery, the Revolving Credit Limit shall be automatically reduced to
equal eighty percent (80%) of the Collateral Value of the Residuals
Collateral as determined by the Lender, and the Company shall pay to the
Lender, no later than the fifth Business Day following such delivery, an
amount to prepay the Revolving Loans equal to the amount, if any, by
which the sum of the aggregate principal amount of Revolving Loans
outstanding on the date of payment by the Company exceeds the Revolving
Credit Limit as so reduced. If, but only if, at such time as the Company
shall be required to prepay Revolving Loans under this subparagraph
3(d)(3) there shall not have occurred and be continuing an Event of
Default or Potential Default, in lieu of making a principal prepayment,
the Company may deliver to the Lender and/or the Custodian additional
Eligible Residual Securities with an Established Collateral Value such
that the Collateral Value of the Residuals Collateral, as determined by
the Lender in its sole discretion, shall equal or exceed one and
one-quarter (1.25) times the Revolving Credit Limit prior to the
automatic reduction pursuant to the preceding sentence, and the
Revolving Credit Limit shall be automatically increased to the level
prior to such automatic reduction. If upon any such automatic reduction
the Company shall not be required to prepay Revolving Loans under this
subparagraph 3(d)(3) and there shall not have occurred and be continuing
an Event of Default or Potential Default, the Company may also deliver
to the Lender and/or the Custodian additional Eligible Residual
Securities with an Established Collateral Value such that the Collateral
Value of the Residuals Collateral, as determined by the Lender in its
sole discretion, shall equal or exceed one and one-quarter (1.25) times
the Revolving Credit Limit prior to such automatic reduction, and the
Revolving Credit Limit shall be automatically increased to the level
prior to such automatic reduction."
(h) Paragraphs 3(f)(3) and 3(f)(4) are hereby deleted in their
entirety and Paragraph 3(f)(5) is hereby renumbered as Paragraph 3(f)(3).
(i) Paragraph 5(b) is hereby amended (i) to delete the phrase
"and to fund the Term Loan," from the second and third lines thereof, (ii) to
add the phrase "and a Borrowing Base Certificate current as of the immediately
preceding Business Day" after the word "therefor" in subparagraph (1) thereof,
(iii) to delete the second, erroneously numbered, subparagraph (4) thereof in
its entirety and to insert in its place a new subparagraph (5) to read in its
entirety as follows:
"(5) With respect to any Revolving Loan to be
funded at any time on and after August 1, 1999, there shall not have
been any outstanding Revolving Loans for a period of no less than three
consecutive Business Days during the immediately preceding calendar
month."
, and (iv) to delete the phrase "and, as applicable, (b)(3) and b(4)" in the
last line thereof and to insert in its place the phrase ", (b)(4) and (b)(5)".
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2. Representations and Warranties. To reflect the agreement of the
parties hereto to amend and add certain representations and warranties,
effective as of the Fourth Amendment Effective Date:
(a) Paragraphs 6(a) and 6(b) are hereby amended to read in their
entirety as follows:
"6(a) Financial Condition. The financial statements dated
February 28, 1999, copies of which have heretofore been delivered to the
Lender, are complete and correct in all material respects and present
fairly in accordance with GAAP the consolidated financial condition of
the Parent and its consolidated Subsidiaries at such dates and the
consolidated and consolidating results of its operations and changes in
cash flows for the fiscal period then ended.
6(b) No Change. Since February 28, 1999, there has been no
material adverse change in the business, operations, assets or financial
or other condition of the Company, the Parent, or the Parent and its
consolidated Subsidiaries taken as a whole."
(b) Paragraph 6(f) of the Agreement is hereby amended by deleting
the phrase "Except as disclosed on Exhibit E hereto," in the first line thereof
and capitalizing the word "no" in the first line thereof.
(c) Paragraph 6(i) of the Agreement is hereby deleted in its
entirety and the phrase "Intentionally omitted" is hereby inserted in its place.
(d) Paragraph 6(j) of the Agreement is hereby amended by deleting
the phrase "nor the Letter of Credit" in the fifth line thereof.
(e) Paragraph 6(l) of the Agreement is hereby amended to read in
its entirety as follows:
"6(l) Assets. The Parent and each of its Subsidiaries have
good and marketable title to all material property and assets reflected
in the financial statements referred to in Paragraph 6(a) above, except
property and assets sold or otherwise disposed of in the ordinary course
of business or for fair market value subsequent to the date thereof."
(f) A new Paragraph 6(o) is hereby added to the Agreement to read
in its entirety as follows:
"6(o) Year 2000 Compliance. Each of the Parent and
the Company has (i) initiated a review and assessment of all areas
within its and each of its Subsidiaries' business and operations
(including those affected by suppliers and vendors) that could be
adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by it or any of its Subsidiaries (or its
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suppliers and vendors) may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date
after December 31, 1999), (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan in accordance with that timetable, except to the
extent that a failure to do so could not reasonably be expected to have
a Material Adverse Effect. Each of the Parent and the Company reasonably
believes that all computer applications (including those of its
suppliers and vendors) that are material to its or any of its
Subsidiaries' business and operations will on a timely basis be able to
perform properly date-sensitive functions for all dates before and after
January 1, 2000 (that is, be "Year 2000 compliant"), except to the
extent that a failure to do so could not reasonably be expected to have
a Material Adverse Effect."
3. Changes in Covenants. To reflect the agreement of the parties hereto
to amend and add certain covenants, effective as of the Fourth Amendment
Effective Date:
(a) Paragraphs 7(a)(2) and 7(a)(3) of the Agreement are hereby
amended to read in their entirety as follows:
"(2) Within forty-five (45) days after the last day
of each calendar quarter other than the last quarter of each fiscal
year, statements of income of the Company for such quarter and a balance
sheet of the Company as of the end of such quarter, and statements of
income and statements of cash flow of the Parent for such quarter and a
balance sheet of the Parent as of the end of such quarter;
(3) Within thirty (30) days after the last day of
each calendar month other than the last month of each calendar quarter,
consolidated statements of income for such month and a consolidated
balance sheet as of the end of such month of the Parent and its
Subsidiaries;"
(b) Paragraph 7(a)(4) of the Agreement is hereby amended by
deleting the phrase "and 8(l)" in the last line thereof and inserting in its
place the phrase ", 8(l) and 8(m)".
(c) Paragraphs 7(b)(1) and 7(b)(2) of the Agreement are hereby
amended to read in their entirety as follows:
"(1) On each Business Day that any Revolving Loan
is outstanding, a Borrowing Base Certificate setting forth a
reconciliation of the Eligible Servicing Receivables included as
Collateral, on a pool by pool basis, including, without limitation,
detail of all outstanding Eligible Servicing Receivables included as
Collateral and all reimbursement on account of Eligible Servicing
Receivables received as of the immediately preceding Business Day; and
upon request of the Lender, such reports and other information relating
to the Collateral, including, without limitation, Residual
Mortgage-Backed Securities as are described therein; and
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(2) The required reports listed on Schedule I
attached hereto at the times set forth therein; and"
and Schedule I to the Agreement is hereby replaced by Replacement Schedule I
attached hereto.
(d) Paragraphs 7(c) and 7(d) of the Agreement are hereby amended
to read in their entirety as follows:
"7(c) Payment of Indebtedness. Pay, discharge or otherwise
satisfy at or before maturity or before it becomes delinquent, defaulted
or accelerated, as the case may be, all its Indebtedness (including
taxes), except Indebtedness (other than the Obligations) in an aggregate
amount not to exceed $1,000,000.
7(d) Maintenance of Existence and Properties. Maintain its
corporate existence and obtain and maintain all rights, privileges,
licenses, approvals, franchises, properties and assets necessary in the
normal conduct of its business (other than such rights, privileges,
licenses, approvals, franchises, properties and assets the failure to so
obtain and maintain would not in the aggregate have a Material Adverse
Effect) and comply with all Contractual Obligations and Requirements of
Law."
(e) New Paragraphs 7(k) and 7(l) are hereby added to the
Agreement to read in their entirety as follows:
"7(k) Year 2000 Compliance. Promptly notify the Lender in
the event it discovers or determines that any computer application
(including those of its suppliers and vendors) that is material to its
or any of its Subsidiaries' business and operations will not be Year
2000 compliant on a timely basis, except to the extent that such failure
could not reasonably be expected to have a Material Adverse Effect.
7(l) No Outstanding Revolving Loans. Pay off all
outstanding Revolving Loans and maintain a zero balance for outstanding
Revolving Loans for a period of not less than three consecutive Business
Days during each calendar month commencing with the month of July,
1999."
(f) Paragraph 8(b)(7) of the Agreement is hereby amended by
deleting the phrase "and Permitted Guaranties" set forth therein.
(g) Paragraph 8(d) of the Agreement is hereby amended by deleting
the phrase "the April 10, 1998" in the third and fourth lines thereof and
inserting in its place the phrase "April 8, 1999".
(h) Paragraph 8(f) of the Agreement is hereby amended to read in its
entirety as follows:
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"8(f) Purchase or Retirement of Stock. In the case of the
Parent, from and after the date of this Agreement, acquire, purchase,
redeem or retire any shares of its capital stock now or hereafter
outstanding (other than the conversion of Series B preferred stock and
Series C preferred stock into common stock contemplated by the Cap Z
Agreement); provided, however, that as long as both before and following
the consummation of such acquisition, purchase, redemption or retirement
there does not exist an Event of Default or Potential Default, the
Parent may enter into such transactions in an aggregate fair market
dollar amount not to exceed $5,000,000.00."
(i) Paragraphs 8(h), 8(i), 8(j), 8(k), 8(l), 8(m), 8(n) and 8(o)
of the Agreement are hereby amended to read in their entirety as follows:
"8(h) Sale of Assets. Sell, lease, assign, transfer or
otherwise dispose of any of its assets (other than obsolete or worn out
property), whether now owned or hereafter acquired, other than in the
ordinary course of business and at fair market value or otherwise in
accordance with the Company's business plan projection known as the
"Project Angel Projection" dated as of February 15, 1999, a copy of
which having been delivered to the Lender.
8(i) Leverage. Permit at any time the Leverage Ratio of
the Parent and its consolidated Subsidiaries to exceed 4.00: 1.00.
8(j) Minimum Tangible Net Worth. Permit at any time:
(1) The Parent's Tangible Net Worth to be less than
the sum of: (i) $135,000,000, plus (ii) eighty percent (80%) of net
income (if positive), determined in accordance with GAAP, during each
calendar quarter ending after the date hereof, plus (iii) eighty-five
percent (85%) of contributions to equity of the Parent (other than the
"Rights Offering" under (and as defined in) the Cap Z Agreement) made at
any time after the date hereof, plus (iv) one hundred percent (100%) of
contributions to equity of the Parent in connection with the "Rights
Offering" under (and as defined in) the Cap Z Agreement, or
(2) The Company's Tangible Net Worth to be less
than the sum of: (i) $400,000,000, plus (ii) eighty percent (80%) of net
income (if positive), determined in accordance with GAAP, during each
calendar quarter ending after the date hereof, plus (iii) eighty-five
percent (85%) of contributions to equity of the Company (other than the
"Rights Offering" under (and as defined in) the Cap Z Agreement) made at
any time after the date hereof, plus (iv) one hundred percent (100%) of
contributions to equity of the Company in connection with the "Rights
Offering" under (and as defined in) the Cap Z Agreement.
8(k) Minimum Profitability. Permit at the end of any
calendar quarter (commencing with the calendar quarter ending September
30, 1999) the Parent's consolidated net income, determined in accordance
with GAAP, for such
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calendar quarter and the immediately preceding calendar quarter,
taken together, to be less than $1.00.
8(l) Non-Warehouse Debt. Permit the Non-Warehouse Debt
Ratio of the Parent and its consolidated Subsidiaries to exceed
1.55:1.00 for the calendar quarters ending March 31, 1999 and June 30,
1999, and 1.40: 1.00 for any other calendar quarter thereafter.
8(m) Maintenance of Liquidity and Committed Working
Capital Line. Permit:
(1) The aggregate amount of the Parent's cash, Cash
Equivalents and available borrowing capacity on unencumbered
assets that could be drawn against (taking into account required
haircuts) under committed warehouse or working capital
facilities, on a consolidated basis and on any given day, to be
less than: (i) prior to July 1, 1999, $5,000,000, and (ii) on and
after July 1, 1999, $15,000,000; provided, however, that the
liquidity of the Parent, on a consolidated basis and on any given
day, may fall below the foregoing thresholds one time in any
given calendar month and such noncompliance shall not last for
more than three Business Days, but may in no event fall below
$1,000,000 at any time; or
(2) The Company to have less than $25,000,000 of
commitment under a committed working capital line (including the
credit facility pursuant to this Agreement) at any time;
provided, however, that the Company may have less commitment than
the foregoing threshold if the Company can otherwise satisfy the
Lender as to the availability of working capital to meet its
servicing advance obligations.
8(n) Modification of Policies and Procedures. Make any
material change in (1) its underwriting policies and procedures which
would, due to reduced standards of creditworthiness for potential
obligors or reduced standards of approval for Property securing a
Mortgage Loan, result in the expansion of the pool of potential obligors
on Mortgage Loans originated or purchased by the Company or such
Subsidiary, or (2) its hedging policies relating to Mortgage Loans, as
such are in effect on the date hereof.
8(o) Subsidiaries. Create or permit the creation of any
Subsidiary not in existence as of the date hereof unless such Subsidiary
is in the same line of business as the Company and the total
capitalization thereof does not exceed $1,000,000."
(j) A new Paragraph 8(p) is hereby added to the Agreement to read
in its entirety as follows:
"8(p) Transactions with Affiliates. Purchase, acquire or
lease any property from, or sell, transfer or lease any property to,
lend or advance any
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money to, borrow any money from, guarantee any obligation of, acquire
any stock, obligations or securities of, or enter into any management or
similar fee arrangement with, any Affiliate, other than (i) on an
arms-length basis upon terms and conditions comparable to those that
could be reached with a third party (ii) Mortgage Loans on the books of
the Parent or the Company with original principal amounts in the
aggregate not to exceed $5,000,000 at any one time extended to
executives of the Parent or the Company, which Mortgage Loans can and
will be securitized."
4. Changes in Events of Default. To reflect the agreement of the parties
hereto to amend and add certain Events of Default, effective as of the Fourth
Amendment Effective Date:
(a) Paragraph 9(b) of the Agreement is hereby amended to read in
its entirety as follows:
"9(b) Any representation or warranty made or deemed made
by the Company or the Parent in any Loan Document or in connection with
any Loan Document shall be inaccurate or incomplete in any material
respect on or as of the date made or deemed made; or"
(b) Paragraph 9(e) of the Agreement is hereby amended to read in
its entirety as follows:
"9(e) The Parent or any of its Subsidiaries shall default
in any payment of principal of or interest on any Indebtedness to the
Lender or any of its Affiliates, or in any other Indebtedness in an
aggregate amount of not less than $1,000,000.00, or any other event
shall occur, the effect of which other event is to permit such
Indebtedness to be declared or otherwise to become due prior to its
stated maturity, or there shall occur an "Event of Default" under (and
as that term is defined in) the Repo Agreement; or"
(c) Paragraph 9(h) of the Agreement is hereby amended to read in
its entirety as follows:
"(h) One or more judgments or decrees shall be entered
against the Company or any of its Subsidiaries in an aggregate amount in
excess of $1,000,000, and the same remains undischarged or unpaid for a
period of sixty (60) days during which execution of such judgment or
decree is not effectively stayed; or"
(d) Paragraphs 9(j) and 9(k) of the Agreement is hereby amended
to read in its entirety as follows:
"9(j) Any Person other than Capital Z Financial Services
Fund II, L.P. and its Affiliates shall acquire more than twenty-five
percent (25%) of the equity interest in the Parent and its Subsidiaries
on a consolidated basis; or
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9(k) There shall occur (i) a material adverse change in, or a
material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) or prospects of the Company or the
Parent, (ii) a material impairment of the ability of the Company or the
Parent to perform under the Loan Documents and to avoid any Event of
Default, or (iii) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Company or the Parent of
the Loan Documents;"
5. Changes in Definitions. To reflect the agreement of the parties
hereto to amend, add and delete certain definitions, effective as of the Fourth
Amendment Effective Date, Paragraph 11 of the Agreement is hereby amended as
follows:
(a) The following definitions are hereby deleted in their
entirety: "Adjusted Net Worth," "Average Total Liabilities," "Collateral Value
of the Residuals Borrowing Base," "Conversion Date," "Interim Date," "Permitted
Guaranties," "Required Principal Prepayment," "Residuals Borrowing Base,"
"Statement Date," "Term Loan," "Term-Out Option" and "Warehousing Agreement."
(b) The following definitions are hereby amended to read in their
entirety as follows:
"Applicable Effective Fed Funds Rate" shall mean on any
day the Effective Fed Funds Rate on such day plus 2.00%.
"Applicable Eurodollar Rate" shall mean, with respect to
any Eurodollar Loan for the Interest Period applicable to such
Eurodollar Loan, the rate per annum (rounded upward, if necessary, to
the next higher 1/32 of one percent) calculated as of the first day of
such Interest Period in accordance with the following formula:
Applicable Eurodollar Rate = ER + 2.00%
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1-ERP
where
ER = Eurodollar Rate
ERP = Eurodollar Reserve Percentage
"Effective Fed Funds Rate Loans" shall mean Revolving
Loans at such time as they are made or being maintained at a rate of
interest based on the Effective Fed Funds Rate.
"Established Collateral Value" shall mean at any date with
respect to any Eligible Residual Security, the value of such Eligible
Residual Security as determined by the Lender using such methodologies
and parameters as may be established by the Lender from time to time in
its sole discretion, as such "Established Collateral Value" set forth in
the most recent Collateral Valuation Report delivered by the Lender to
the Company.
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"Leverage Ratio" of any Person shall mean, on a consolidated
basis, the ratio of such Person's (a) total liabilities, as determined
in accordance with GAAP, minus Subordinated Debt, to (b) Tangible Net
Worth plus Subordinated Debt.
"Loan Documents" shall mean this Agreement, the Security
Agreement, the Notes, the Guaranty, the Custody Agreement and each other
document, instrument or agreement executed by the Company in connection
herewith or therewith, as any of the same may be amended, extended or
replaced from time to time.
"Loans" shall mean the Revolving Loans.
"Maturity Date" shall mean the earlier of: (a) April 7, 2000, as
such date may be extended from time to time in writing by the Lender,
the Company and the Parent, and (b) the date the Lender terminates its
obligation to make further Loans hereunder pursuant to Paragraph 9
above.
"Non-Warehouse Debt Ratio" shall mean, with respect to the
Parent and its Subsidiaries on a consolidated basis, on any date the
ratio of (a) consolidated funded Indebtedness (including Subordinated
Debt), minus the sum of- (i) unrestricted cash or Cash Equivalents
exceeding $5,000,000.00, plus (ii) one hundred percent (100%) of the
value, according to the Parent's balance sheet at such date, of all
Mortgage Loans held for sale, plus (iii) eighty percent (80%) of the
dollar amount of all accounts receivable shown on the Parent's balance
sheet at such date (but excluding all accounts receivable as to which
any Affiliate or any Subsidiary of the Parent is the account party), to
(b) Tangible Net Worth.
"Revolving Credit Limit" shall mean $25,000,000.00, as such
amount may be increased or decreased by mutual agreement of the Lender
and the Company.
(c) The following new definitions are hereby added to Paragraph
11 of the Agreement in correct alphabetical order to read in their entirety as
follows:
"Borrowing Base" shall mean at any date all Eligible Servicing
Receivables in which the Lender holds a first priority perfected
security interest at such date.
"Borrowing Base Certificate" shall mean a certificate in the
form of Exhibit J hereto setting forth in detail satisfactory to the
Lender the Collateral Value of the Borrowing Base as of the date of such
certificate.
"Cap Z Agreement" shall mean that certain Preferred Stock
Purchase Agreement dated as of December 23, 1998 by and between
Guarantor and Capital Z Financial Services Fund II, L.P., as amended on
February 10, 1999.
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"Cash Equivalents" shall mean (a) securities with
maturities of 90 days or less from the date of acquisition issued or
fully guaranteed or insured by the United States Government or any
agency thereof, (b) certificates of deposit and eurodollar time deposits
with maturities of 90 days or less from the date of acquisition and
overnight bank deposits of any commercial bank having capital and
surplus in excess of $500,000,000, (c) repurchase obligations of any
commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than seven days with respect to
securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least A-1
or the equivalent thereof by Standard and Poor's Ratings Group ("S&P")
or P-1 or the equivalent thereof by Xxxxx'x Investors Service, Inc.
("Moody's") and in either case maturing within 90 days after the day of
acquisition, (e) securities with maturities of 90 days or less from the
date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or A
by Moody's, (f) securities with maturities of 90 days or less from the
date of acquisition backed by standby letters of credit issued by any
commercial bank satisfying the requirements of clause (b) of this
definition or (g) shares of money market mutual or similar funds which
invest exclusively in assets satisfying the requirements of clauses (a)
through (f) of this definition.
"Collateral Value of the Borrowing Base" shall mean eighty
percent (80%) of the aggregate dollar amount of Eligible Servicing
Receivables included in the Borrowing Base at such date.
"Collateral Value of the Residuals Collateral" shall mean
at any date the aggregate Established Collateral Value of all Eligible
Residual Securities in which the Lender holds a first priority perfected
security interest at such date.
"Custodian" shall mean The Chase Manhattan Bank, in its
capacity as custodian for the Lender pursuant to the Custody Agreement.
"Custody Agreement" shall mean that certain Amended and
Restated Collateral Custody Agreement dated as of April 9, 1999 by and
among the Company, the Lender and the Custodian, as amended, restated,
extended and replaced from time to time.
"Eligible Servicing Receivable" shall mean a Servicing
Receivable with respect to which each of the following statements shall
be accurate and complete (and the Company by including such Servicing
Receivable in any computation of the Collateral Value of the Borrowing
Base shall be deemed to so represent and warrant to the Lender):
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(a) The servicing contract under which such
Servicing Receivable arose is in full force and effect and is free of
any default of the Company (other than any of the following defaults
which exist as of the Fourth Amendment Effective Date: (i) the dollar
volume of loans which are delinquent for more than ninety (90) days
exceeded the permitted limit in the related pooling and servicing
agreements for the following securitization trusts: 1992-2, 1993-2,
1995-A, 1995-B, 1995-C, 1995-D, 1996-A, 1996-B, 1996-C, 1996-D and
1997-1, and (ii) one of two loss limits in the relating pooling and
servicing agreements were exceeded for the following securitization
trusts: 1994-B, 1995-D, 1996-A, 1996-B, 1996-C and 1996-D; and other
than any future defaults of similar nature so long as the related
servicing contract is not terminated) and there does not exist any fact
or circumstance that would entitle the investor thereunder to terminate
said servicing contract.
(b) No Person has a Lien or other interest or claim
on any right, title or interest of the Company under the servicing
contract under which such Servicing Receivable arose or on any right of
the Company to payment thereunder.
(c) Such Servicing Receivable arose in connection
with a servicing advance made by or a servicing fee owed to the Company,
whether on account of principal or interest, property taxes or property
insurance or otherwise, consistent with all terms and conditions of the
related servicing contract and is free of any counterclaim, right of
appeal or defense to payment.
(d) The assignment by the Company of its right to
payment of such Servicing Receivable does not violate any Requirement of
Law or Contractual Obligation or require the giving of notice to or
obtaining the consent of any Person, including, without limitation, the
investor party to the related servicing contract.
"Fourth Amendment Effective Date" shall have the meaning given
such term in that certain Fourth Amendment to Residuals Financing
Agreement dated as of April 9, 1999 by and among the Company, the Parent
and the Lender.
"Material Adverse Effect" shall mean the existence of any
circumstance or event which, individually or collectively, is reasonably
expected to result in any (a) material adverse impairment of the
Company's or the Parent's ability to perform its obligations under the
Loan Documents, (b) material impairment on the ability of the Lender to
enforce any of such obligations or any of its rights, remedies, powers,
privileges and benefits under the Loan Documents, (c) material adverse
effect on the Parent's or the Company's financial condition as
represented to the Lender in the most recently furnished financial
statements, or (d) Event of Default.
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"Repo Agreement" shall mean that certain Master Repurchase
Agreement dated as of April 8, 1999 by and between the Company and the
Lender.
"Servicing Receivable" shall mean the right of the Company to
reimbursement for an advance made by or a fee owed to the Company in the
ordinary course of the Company's business in its capacity as servicer of
Mortgage Loans owned by a Person that is not an Affiliate of the Company
under (a) a servicing agreement covering a pool of Mortgage Loans
originated or purchased by the Company and securing or otherwise
supporting a Mortgage-Backed Security, or (b) a servicing agreement with
a private investor provided that the Lender has reviewed and approved
the form of such servicing agreement prior to inclusion of the related
Servicing Receivable in the Borrowing Base.
"Tangible Net Worth" of any Person shall mean the consolidated
net worth of such Person, determined in accordance with GAAP, minus all
intangible assets under GAAP; provided that residual assets shall not be
classified as intangible assets.
6. Pledge of Servicing Receivables. Pursuant to the Security Agreement,
the Company has pledged and granted to the Lender a first priority, perfected
security interest in the Servicing Receivables from time to time identified by
the Company as Collateral under the Agreement. To reflect the Company's
inclusion of certain Eligible Servicing Receivables in the Borrowing Base,
effective as of the Fourth Amendment Effective Date, Schedule 1 to the Security
Agreement is hereby replaced by Replacement Schedule 1 attached hereto. The
Company shall execute and deliver to the Lender such UCC financing statement
amendments as required by the Lender to reflect such change. In addition,
Paragraph 2(b) of the Security Agreement is hereby amended to read in its
entirety as follows:
"(b) All rights of the Company, now existing and hereafter
arising, to reimbursement for all fees and advances (collectively and
severally, the "Servicing Receivables"), whether on account of principal
or interest, property taxes or property insurance or otherwise, made by
the Company under those servicing contracts covering Mortgage Loans
owned by third parties and under those pooling and servicing agreements
covering Mortgage-Backed Securities described on Schedule 1 attached
hereto, as such Schedule 1 may be amended from time to time: (i) if such
amendment relates solely to the addition of servicing contracts or
agreements, by the Company in writing submitted to the Lender, and (ii)
in all other cases, by written agreement of the Company and the Lender;"
7. Delivery of Residuals Collateral. The parties hereto hereby agree
that on or before the Fourth Amendment Effective Date, the Company shall deliver
either directly to the Lender or to the Custodian pursuant to the Custody
Agreement (a form of which is attached hereto as Exhibit A) the certificates
representing the Residual Mortgage-Backed Securities set forth on Schedule 2
hereto (the "Additional Collateral"), properly endorsed in blank for transfer,
such that as of the Fourth Amendment Effective Date, the Collateral
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Value of the Residuals Collateral shall equal to or exceed one and one-quarter
(1.25) times the Revolving Credit Limit.
8. Amendment and Addition of Exhibits. The parties hereto hereby agree
that, effective as of the Fourth Amendment Effective Date:
(a) Exhibits G, H and I to the Agreement are hereby amended and
replaced by Replacement Exhibits G, H and I attached hereto.
(b) A new Exhibit J in the form of that attached hereto is hereby
added to the Agreement.
9. Reaffirmation of Loan Documents. Each of the Company and the Parent
hereby affirms and agrees that (a) except as expressly amended hereby, the
execution and delivery by the Company and the Parent of and the performance of
their obligations under this Amendment shall not in any way amend, impair,
invalidate or otherwise affect any of the obligations of the Company or the
Parent or the rights of the Lender under the Agreement, the Security Agreement,
the Guaranty or any other Loan Document, (b) the term "Obligations" as used in
the Loan Documents includes, without limitation, the Obligations of the Company
under the Agreement as amended hereby.
10. Fourth Amendment Effective Date. This Amendment shall be effective
as of the earliest date (the "Fourth Amendment Effective Date") on which each of
the following events shall have occurred:
(a) Each of the Company and the Parent has duly executed and
delivered to the Lender this Amendment;
(b) Each of the Company and the Custodian has duly executed and
delivered to the Lender the Custody Agreement;
(c) The Company has duly delivered to the Lender and/or the
Custodian the Additional Collateral pursuant to Paragraph 7 above;
(d) The Company has duly executed and delivered to the Lender all
UCC financing statement amendments required by the Lender to perfect its first
priority security interest in the Collateral;
(e) The Company has paid to the Lender the upfront fee pursuant
to that certain fee letter dated as of April 8, 1999 in immediately available
funds;
(f) The Company has duly prepared and delivered to the Lender a
Borrowing Base Certificate as of the Fourth Amendment Effective Date in form and
substance satisfactory to the Lender; and
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(g) The Company has delivered to the Lender an opinion of counsel
for the Company and the Parent to the effect (but updated to be current as of
the Fourth Amendment Effective Date) and in substantially the form of that
certain opinion of counsel dated September 4, 1998 delivered by the general
counsel of the Parent in connection with the Agreement.
11. Representations and Warranties. Each of the Company and the Parent
hereby further represents and warrants to the Lender as follows:
(a) Each of the Company and the Parent has the corporate power
and authority and the legal right to execute, deliver and perform this Amendment
and has taken all necessary corporate action to authorize the execution,
delivery and performance of this Amendment. This Amendment has been duly
executed and delivered on behalf of the Company and the Parent and constitutes
the legal, valid and binding obligations of each, enforceable against each in
accordance with its terms.
(b) At and as of the date of execution hereof and at and as of
the Fourth Amendment Effective Date and both prior to and after giving effect
hereto: (i) the representations and warranties of the Company and the Parent
contained in the Agreement and the other Loan Documents are accurate and
complete in all respects, and (ii) there has not occurred an Event of Default or
Potential Default.
12. No Other Amendment. Except as expressly amended hereby, the Loan
Documents shall remain in full force and effect as written and amended to date.
13. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first above written.
AAMES CAPITAL CORPORATION, a California
corporation
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
---------------------------------------------
Title: EVP & CFO
--------------------------------------------
AAMES FINANCIAL CORPORATION, a Delaware
corporation
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
---------------------------------------------
Title: EVP & CFO
--------------------------------------------
NATIONSBANK, N.A., a national banking association
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxxx Xxxxxx
---------------------------------------------
Title: Senior Vice President
--------------------------------------------
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REPLACEMENT SCHEDULE I
TO THE AGREEMENT
SCHEDULE OF REQUIRED REPORTS
1. Monthly Total Geographic Servicing Portfolio
2. Quarterly MR141 Pool Loan Statistics Report
3. Quarterly Loss Report
4. Quarterly I/O Strip Status Report
5. Quarterly Gain on Sale Reconciliation
6. Quarterly REMIC Cash Flow Report
7. Quarterly Asset Quality Data Report
8. Quarterly Projected REO Loss Report
9. Static Pool Analysis Report
10. Daily Cash Flow and Servicing Advance Report, to be delivered to the Lender
once every two weeks for the immediately preceding two-week period and more
frequently upon telephonic request by the Lender
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REPLACEMENT SCHEDULE 1
TO THE SECURITY AGREEMENT
SERVICING CONTRACTS
AND
POOLING AND SERVICING AGREEMENTS
(AS OF THE FOURTH AMENDMENT EFFECTIVE DATE)
[TO BE PREPARED BY THE COMPANY;
TO INCLUDE A LIST OF ALL SERVICING CONTRACTS EXISTING
AS OF THE FOURTH AMENDMENT EFFECTIVE DATE
OTHER THAN THOSE RELATED TO THE POOLS
SUBJECT TO THE FAIRBANKS TRANSACTION]
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SCHEDULE 2
SCHEDULE OF ADDITIONAL COLLATERAL
Aames Mortgage Trust 1995-B Mortgage Pass-Through Certificate, Series 1995-B,
Class R, Certificate No.: R02
Aames Mortgage Trust 1996-A Mortgage Pass-Through Certificate, Series 1996-C,
Class R, Certificate No.: R02
Aames Mortgage Trust 1996-B Mortgage Pass-Through Certificate, Series 1996-C,
Class R, Certificate No.: R02
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REPLACEMENT EXHIBIT G
TO THE AGREEMENT
FORM OF
COMPLIANCE CERTIFICATE
Aames Financial Corporation
Aames Capital Corporation
Compliance Certificate
Dated ____________
To: NationsBank, N.A.
Attached please find the financial statements of Aames Financial
Corporation (the "Parent") and Aames Capital Corporation (the "Company"). This
is the certificate referenced in Paragraph 7(a)(4) of that certain Residuals
Financing Agreement dated as of September 4, 1998 among the Parent, the Company
and NationsBank, N.A. (the "Lender") (as amended from time to time, the "Loan
Agreement"). Capitalized terms used herein and not otherwise defined shall have
the meanings given such terms in the Loan Agreement.
The undersigned on behalf of the Parent and the Company hereby
certifies that the attached consolidated financial statement is complete, true
and correct, and that it was prepared in conformity with generally accepted
accounting principles applied on a basis consistent with that of the preceding
fiscal year end statements, and that it fairly presents the financial position
of the Parent, the Company and their respective Subsidiaries and the results of
their respective operations as of the end of ___________ and for the period then
ended.
The undersigned further hereby certifies that each and every
covenant of the Parent and the Company in the Loan Agreement and the other Loan
Documents has been performed and observed, that all representations and
warranties of the Parent and the Company in the Loan Agreement and the other
Loan Documents are accurate and complete as of the date hereof, and that no
Event of Default or Potential Default has occurred as of the date hereof.
Attached in addition to the financial statements are the
calculations of the financial covenants as required by the Loan Agreement.
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FINANCIAL COVENANT COMPLIANCE SUMMARY
Section Covenant Required Actual
------- -------- -------- ------
8(i) Leverage Ratio (Guarantor only) 4.00:1.00 ________
8(j) Minimum Net Worth:
Aames Financial Corporation ________ ________
Aames Capital Corporation ________ ________
8(k) Minimum Profitability (Guarantor only) $1.00 ________
8(l) Non-Warehouse Debt Ratio (Guarantor only) 1.55:1.00 at
3/31/99 and
6/30/99; ________
1.40:1
thereafter
8(m) Liquidity (Guarantor only) $5,000,000 ________
at any time
prior to
7/1/99;
$15,000,000
thereafter
Committed Working Capital Line $25,000,000 __________
AAMES FINANCIAL CORPORATION AAMES CAPITAL CORPORATION
By:_____________________________ By:_________________________________
Name:___________________________ Name________________________________
Title:__________________________ Title:______________________________
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CALCULATIONS
Leverage Ratio Calculation (Guarantor only)
(A) total liabilities (A) _______________
(B) Subordinated Debt (B) _______________
(C) Line (a) minus Line (b) (C) _______________
(D) net worth (D) _______________
(E) intangible assets (E)
(F) Tangible Net Worth (Line (d)
minus Line (e)) (F) _______________
(G) LEVERAGE RATIO (Line (c)
divided by Line (f)) (G) _______________
Minimum Tangible Net Worth - Guarantor
$135,000,000 $135,000,000
Plus 80% of net income excluding losses ____________
Plus 85% of contributions to equity (other than
Rights Offering) ____________
Plus 100% of contributions to equity in
connection with Rights Offering ____________
Minimum Tangible Net Worth ____________
Actual Tangible Net Worth ____________
Minimum Tangible Net Worth - Seller
$400,000,000 $400,000,000
Plus 80% of net income excluding losses ____________
Plus 85% of contributions to equity (other than
Rights Offering) ____________
Plus 100% of contributions to equity in
connection with Rights Offering ____________
Minimum Tangible Net Worth ____________
Actual Tangible Net Worth ____________
Minimum Profitability (Guarantor only)
Net income for the quarter ending _________ (a) _______________
Net income for the previous quarter ending ________ (b) _______________
Total (a+b) _______________
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Non-Warehouse Debt Ratio (Guarantor only)
(a) Consolidated funded Indebtedness
(including Subordinated Debt) (a)_____________
(1) unrestricted cash or cash equivalents in
excess of $5,000,000 (1)_____________
(2) 100% of book value of all Mortgage Loans
held for sale (2)_____________
(3) 80% of all accounts receivables (3)_____________
(b) Result of (1) plus (2) plus (3) (b)_____________
(c) Result of (a) minus (b) (c)_____________
(d) Tangible Net Worth (d)_____________
(e) NON WAREHOUSE DEBT RATIO
(line (c) divided by line (d)) (e)_____________
Liquidity (Guarantor only)
(a) Cash and Cash Equivalents (a)_____________
(b) Available borrowing capacity under
committed warehouse and working capital facilities (b)_____________
(c) Result of (a) plus (b) (c)_____________
which is not to be less than:
(1) $5,000,000 at any time prior to 7/1/99 (1)_____________
(2) $15,000,000 at any time on and after 7/1/99 (2)_____________
Details of noncompliance period, if any:
Committed Working Capital Line (Seller) _____________
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REPLACEMENT EXHIBIT H
TO THE AGREEMENT
FORM OF
LOAN AND/OR INTEREST RATE ELECTION REQUEST
To: NationsBank, N.A.,
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
The undersigned, AAMES CAPITAL CORPORATION ("Borrower") hereby requests
[a Revolving Loan] [conversion/continuation of a Loan] under (and as capitalized
terms used herein are defined in) that certain Residuals Financing Agreement,
dated as of September 4, 1998 among Borrower, Aames Financial Corporation and
NationsBank, N.A. (as amended from time to time, the "Agreement"), as follows:
1. REQUEST FOR NEW REVOLVING LOAN:
A. Date of borrowing: _____________
B. Principal amount of requested Revolving Loan: $_____________
2. CONVERSION TO A EURODOLLAR LOAN:
A. Date of proposed conversion (at least three
Eurodollar Business Days after the date hereof): _____________
B. Principal amount of outstanding Effective
Fed Funds Rate Loans to be converted: $_____________
C. Interest Period (one, two or three months),
and last day thereof: _____________
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3. CONVERSION TO AN EFFECTIVE FED FUNDS RATE LOAN:
A. Date of proposed conversion (which date must
be the last day of the Interest Period applicable to
the Eurodollar Loans being converted): _____________
B. Principal amount of outstanding Eurodollar
Loans to be converted: $_____________
4. CONTINUATION OF EURODOLLAR LOANS:
A. Date of proposed continuation (which date must
be the last day of the Interest Period applicable to
the Eurodollar Loans being continued, and at least
three Eurodollar Business Days after the date hereof): _____________
B. Principal amount of outstanding Eurodollar
Loans to be continued: $_____________
C. Interest Period (one, two or three months),
and last day thereof: _____________
Borrower hereby confirms on behalf of itself and Aames Financial
Corporation that on and as of the date of the requested borrowing or conversion
or continuation all of the conditions precedent required by Paragraph 5 of the
Agreement have been met, and that no Event of Default or Potential Event of
Default has occurred or will occur as a result of the requested borrowing or
conversion or continuation.
DATE:_________________ AAMES CAPITAL CORPORATION
By:__________________________________
Name:________________________________
Title:_______________________________
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REPLACEMENT EXHIBIT I
TO THE AGREEMENT
PERMITTED SECURED DEBT
1. Warehouse lines of credit secured by Mortgage Loans owned by the Company
provided that the Intercreditor and Joint Shipment Agreement required by
the Repo Agreement has been executed and delivered by the lenders under
such other warehouse lines of credit.
2. Indebtedness secured by the Company's residual interest certificates in
REMIC trusts.
3. Indebtedness under arbitrage lines of credit secured by readily
marketable investment securities purchased with the proceeds of advances
thereunder in an aggregate amount not to exceed $60,000,000.
4. Capitalized Lease Obligations in an aggregate amount not to exceed
$10,000,000.
5. Indebtedness under repurchase agreements for the warehousing of Mortgage
Loans entered into in the ordinary course of business provided that the
Intercreditor and Joint Shipment Agreement required by the Repo
Agreement has been executed and delivered by the repo lenders under such
repurchase agreements.
6. Indebtedness secured by servicing receivables.
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EXHIBIT J
FORM OF
BORROWING BASE CERTIFICATE
[TO ATTACH THE BORROWING BASE CERTIFICATE DELIVERED
AS OF THE FOURTH AMENDMENT EFFECTIVE DATE]
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EXHIBIT A
AMENDED AND RESTATED COLLATERAL CUSTODY AGREEMENT
This Amended and Restated Collateral Custody Agreement (this
"Agreement") is made and dated as of April 9, 1999, by and among Aames Capital
Corporation (the "Company"), NationsBank, N.A. (the "Lender"), and The Chase
Manhattan Bank (the "Custodian").
RECITALS
A. Pursuant to that certain Residuals Financing Agreement dated as of
September 4, 1998 among the Company, Aames Financial Corporation and the Lender
(as amended, extended and replaced from time to time, the "Credit Agreement"),
the Lender agreed to extend credit to the Company on the terms and subject to
the conditions set forth therein.
B. Pursuant to that certain Residuals Financing Security Agreement dated
as of September 4, 1998 between the Company and the Lender (as amended, extended
and replaced from time to time, the "Security Agreement"), the Company granted a
first priority, perfected security interest in the "Collateral" in order to
secure payment and performance of the "Obligations" under the Credit Agreement.
The terms "Collateral" and "Obligations" shall have the meanings given such
terms in the Credit Agreement.
C. Pursuant to that certain Collateral Custody Agreement dated as of
December 10, 1998 (the "Existing Custody Agreement") by and among the Company,
the Lender and the Custodian, the Custodian has agreed to act as custodian for
the Lender with respect to certain items of Collateral.
D. The parties hereto wish to amend certain provisions of the Existing
Custody Agreement and, for convenience of reference, restate the Existing
Custody Agreement in its entirety hereby.
NOW THEREFORE, in consideration of the above Recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Appointment of Custodian. The Lender and Company do hereby appoint
and designate the Custodian as custodian on behalf of the Lender for the
purposes set forth herein, and the Custodian does hereby accept such appointment
under the terms and conditions set forth herein.
2. Taking Possession of Collateral. From time to time the Company may
deposit certain items of Collateral with the Custodian with written instruction
that such items of Collateral be held by the Custodian as Collateral under the
Security Agreement (such items of Collateral so deposited, individually and
collectively, the "Delivered Collateral"). The Custodian shall take possession
of the Delivered Collateral as
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custodian on behalf of the Lender as secured party under the Security Agreement
until such time as the Custodian shall have received notice from the Lender that
the Lender is releasing any item of the Delivered Collateral pursuant to the
terms of the Credit Agreement, at which time the Custodian shall hold such
released item of the Delivered Collateral as custodian on behalf of the Company
as owner and deliver such released item of the Delivered Collateral as directed
by the Company. The Custodian shall maintain books and records reflecting the
Delivered Collateral as collateral security for the Obligations of the Company
to the Lender and shall hold the Delivered Collateral in secure and
fire-resistant facilities. As of the date of this Agreement, the Company hereby
deposits the items of Collateral identified on Schedule I attached hereto and
instructs the Custodian to hold such items as Delivered Collateral for the
benefit of the Lender. Notwithstanding the preceding sentence, the Lender hereby
releases any interest in Aames Mortgage Trust 1995-C Mortgage Pass-Through
Certificate, Series 1995-C, Class R, Certificate No.: R02, Aames Mortgage Trust
1995-D Mortgage Pass-Through Certificate, Series 1995-D, Class R, Certificate
No.: R02 and Aames Mortgage Trust 1996-C Mortgage Pass-Through Certificate,
Series 1996-C, Class R, Certificate No.: R02 (collectively, the "Company
Collateral") which Custodian shall hold as custodian on behalf of the Company as
owner and deliver the Company Collateral as directed by the Company.
3. Income on Account of Delivered Collateral. In the event that any
interest income attributable to the Delivered Collateral is paid to the
Custodian, unless otherwise instructed by the Lender, the Custodian is hereby
instructed to transfer, as soon as practicable, said interest income to the
Company pursuant to the following wire instructions:
Sanwa Bank - ABA# 000000000
Aames Capital Corp. Investment Account
Account No. 0499-18969
Attn: Ramada Yasmin
Upon receipt of any instructions otherwise by the Lender, the Custodian shall
cease to transfer said interest income to the Company and shall transfer said
interest income in accordance with the Lender's instructions. It is hereby
understood that the Custodian shall have no duty to solicit any payments that
may be due in connection with the Delivered Collateral.
4. Execution of Transfer Notices in Blank. Within one (1) Business Day
after the Custodian takes possession of the Delivered Collateral pursuant to
this Agreement, the Custodian shall execute a transfer notice in blank in the
form attached hereto as Exhibit A for each certificate constituting Delivered
Collateral and attach one such executed transfer notice to each such
certificate.
5. Reregistration of Delivered Collateral. The Custodian shall hold the
Delivered Collateral as endorsed pursuant to Paragraph 4 above and shall not
reregister the Delivered Collateral in the name of the Lender or any other
person, unless and until the
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Custodian receives from the Lender a notice of default by the Company under the
Credit Agreement. Upon receipt of such notice of default, the Custodian shall
reregister the Delivered Collateral in the name of the Lender or any other
person as designated by the Lender, and deliver the Delivered Collateral as
directed by the Lender.
6. Termination. Upon delivery of the Delivered Collateral by the
Custodian to any party pursuant to the terms of this Agreement, the Company and
the Lender shall release the Custodian from all further responsibility hereunder
and this Agreement shall terminate, subject to the provisions of Paragraph 12
hereunder, which paragraph shall survive such termination.
7. Duties of the Custodian. The duties and responsibilities of the
Custodian hereunder shall be determined solely by the express provisions of this
Agreement, and no other or further duties or responsibilities shall be implied.
The Custodian shall not have any liability under, nor duty to inquire into the
terms and provisions of any agreement or instructions, other than outlined in
the Agreement.
8. Reliance. The Custodian may rely and shall be protected in acting or
refraining from acting upon any written notice, instruction or request furnished
to it hereunder and believed by it to be genuine and to have been signed or
presented by the proper party or parties. The Custodian shall be under no duty
to inquire into or investigate the validity, accuracy or content of any such
document. The Custodian shall have no duty to solicit any payments which may be
due it hereunder.
9. Liability. The Custodian shall not be liable for any action taken or
omitted by it in good faith unless a court of competent jurisdiction determines
that the Custodian's willful misconduct was the primary cause of any loss to the
Lender or Company. In the administration of the collateral account hereunder,
the Custodian may execute any of its powers and perform its duties hereunder
directly or through agents or attorneys and may consult with counsel,
accountants and other skilled persons to be selected and retained by it. The
Custodian shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the advice or opinion of any such counsel,
accountants or other skilled persons. The Custodian shall not incur any
liability for following the instructions herein contained or expressly provided
for, or written instructions given by the parties hereto.
10. Resignation. The Custodian may resign and be discharged from its
duties or obligations hereunder by giving ten (10) Business Days' prior notice
in writing to the Lender and the Company of such resignation specifying a date
when such resignation shall take effect.
11. Compensation. The Company hereby agrees to (i) pay the Custodian
upon execution of this Agreement reasonable compensation for the services to be
rendered hereunder, as described on Schedule II attached hereto, and (ii) pay or
reimburse the Custodian upon request for all expenses, disbursement and
advances, including
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reasonable attorney's fees, incurred or made by it in connection with the
preparation, execution, performance, delivery, modification and termination of
this Agreement.
12. Indemnification. The Company shall indemnify, defend and save
harmless the Custodian from all loss, liability or expense (including the fees
and expenses of in house or outside counsel) arising out of or in connection
with (i) its execution and performance of this Agreement, except to the extent
that such loss, liability or expense is due to the gross negligence or willful
misconduct of the Custodian, or (ii) its following any instructions or other
directions from the Lender or the Company, except to the extent that its
following any such instruction or direction is expressly forbidden by the terms
hereof. Anything in this agreement to the contrary notwithstanding, in no event
shall the Custodian be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including but not limited to lost profits), even
if the Custodian has been advised of the likelihood of such loss or damage and
regardless of the form of action.
13. Tax Identification Number. Each party hereto, except the Custodian,
shall, in the notice section of this agreement, provide the Custodian with its
Tax Identification Number (TIN) as assigned by the Internal Revenue Service. All
interest or other income earned under this Agreement shall be allocated and paid
as provided herein and reported by the recipient to the Internal Revenue Service
as having been so allocated and paid.
14. Notice. All notices and communications hereunder shall be in writing
and shall be deemed to be duly given if sent by registered mail, return receipt
requested, or by telefacsimile, as follows:
If to the Custodian: The Chase Manhattan Bank
Corporate Trust Group
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Pledged Asset Control Services, 15th Floor
Fax: 000-000-0000
If to the Company: Aames Capital Corporation
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Fax: 000-000-0000
TIN: 00-0000000
If to the Lender: NationsBank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx
Fax: (000) 000-0000
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or at such other address or fax number as any of the above may have furnished to
the other parties in writing by registered mail, return receipt requested, or by
telefacsimile, and any such notice or communication given in the manner
specified in this Paragraph 14 shall be deemed to have been given as of the date
so mailed or as of the time so faxed, as applicable. In the event that the
Custodian, in its sole discretion, shall determine that an emergency exists, the
Custodian may use such other means of communications as the Custodian deems
advisable.
15. Funds Transfer Instructions. In the event funds transfer
instructions are given (other than in writing at the time of execution of this
Agreement), whether in writing, by telecopier or otherwise, the Custodian is
authorized to seek confirmation of such instructions by telephone call-back to
the person or persons designated on Schedule III hereto, and the Custodian may
rely upon the confirmations of anyone purporting to be the person or persons so
designated. The persons and telephone numbers for call-backs may be changed only
in a writing actually received and acknowledged by the Custodian. The parties to
this Agreement acknowledge that such security procedure is commercially
reasonable. It is understood that the Custodian and the beneficiary's bank in
any funds transfer may rely solely upon any account numbers or similar
identifying number provided by either of the other parties hereto to identify
(i) the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank.
The Custodian may apply any of the escrowed funds for any payment order it
executes using any such identifying number, even where its use may result in a
person other than the beneficiary being paid, or the transfer of funds to a bank
other than the beneficiary's bank, or an intermediary bank designated.
16. Amendment. The provisions of this Agreement may not be waived,
altered, amended or supplemented, in whole or in part, except by a writing
signed by all of the parties hereto.
17. No Assignment. Neither this Agreement nor any right or interest
hereunder may be assigned in whole or in part by any party without the prior
consent of the other parties.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19. Conflicting Instructions. In the event that the Custodian shall
receive instructions, claims or demands from any party hereto which, in its
opinion, conflict with any of the provisions of this Agreement, it shall be
entitled to refrain from taking any action and its sole obligation shall be to
keep safely all property held in escrow until it shall be directed otherwise in
writing by all of the other parties hereto or by a final order or judgment of a
court of competent jurisdiction.
20. Merger. Any corporation into which the Custodian in its individual
capacity may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Custodian in its
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individual capacity shall be a party, or any corporation to which substantially
all the corporate trust business of the Custodian in its individual capacity may
be transferred, shall be the Custodian under this Agreement without further act.
21. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to its
principles of conflicts of laws and any action brought hereunder shall be
brought in the courts of the State of New York, located in the County of New
York. Each party hereto irrevocably waives any objection on the grounds of
venue, forum non-conveniens or any similar grounds and irrevocably consents to
service of process by mail or in any other manner permitted by applicable law
and consents to the jurisdiction of said courts.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first above written.
AAMES CAPITAL CORPORATION, a California
corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------------
Title: EVP & CFO
----------------------------------------
NATIONSBANK, N.A., a national banking association
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxx
-----------------------------------------
Title: Senior Vice President
----------------------------------------
THE CHASE MANHATTAN BANK, as the Custodian
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------------
Title: Assistant Vice President
----------------------------------------
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SCHEDULE I
SCHEDULE OF DELIVERED COLLATERAL
[AS OF APRIL 9, 1999]
Aames Mortgage Trust 1995-C Mortgage Pass-Through Certificate,
Series 1995-C, Class R, Certificate No.: R02
Aames Mortgage Trust 1995-D Mortgage Pass-Through Certificate,
Series 1995-D, Class R, Certificate No.: R02
Aames Mortgage Trust 1996-A Mortgage Pass-Through Certificate,
Series 1996-C, Class R, Certificate No.: R02
Aames Mortgage Trust 1996-B Mortgage Pass-Through Certificate,
Series 1996-C, Class R, Certificate No.: R02
Aames Mortgage Trust 1996-C Mortgage Pass-Through Certificate,
Series 1996-C, Class R, Certificate No.: R02
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EXHIBIT A
TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned holder hereby sells, assigns and transfers
unto ____________________________________, whose taxpayer identification number
is _________________ and whose address including postal/ZIP code is
_____________________________________________________, the within security and
all rights thereunder, hereby irrevocably constituting and appointing
_________________________________ attorney-in-fact to transfer said security on
books of the Trustee with full power of substitution in the premises.
NOTICE:The signature of the holder to this assignment must correspond
with the name as written upon the face of the within instrument in every
particular, without enlargement or any change whatsoever.
Dated: ____________ THE CHASE MANHATTAN BANK, AS CUSTODIAN
FOR NATIONSBANK, N.A.
By:_____________________________
Name:___________________________
Title:__________________________
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SCHEDULE II
7.5 basis points of the highest value of collateral held on deposit per annum or
any part thereof without proration for partial years, subject to a minimum of
$7,500 per annum or any part thereof without proration for partial years.
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SCHEDULE III
TELEPHONE NUMBER(S) FOR CALL-BACKS AND
PERSON(S) DESIGNATED TO CONFIRM FUNDS TRANSFER INSTRUCTIONS
If to Lender:
Name Telephone Number
---- ----------------
1. ______________________ _______________________
2. ______________________ _______________________
3. ______________________ _______________________
If to Company:
Name Telephone Number
---- ----------------
1. ______________________ _______________________
2. ______________________ _______________________
3. ______________________ _______________________
Telephone call-backs shall be made to each Lender and Company if joint
instructions are required pursuant to the Agreement.
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