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EXHIBIT 10.17(c)
AMENDMENT
AMENDMENT, dated as of August 19, 1997 (this "Amendment"), to the
Interim Loan and Security Agreement, dated as of November 22, 1996 (as modified
by that certain Notice of Extension of Agreement No. 1 dated May 15, 1997 with
effect as of March 31, 1997 ("Extension No. 1"), and as otherwise amended,
supplemented or otherwise modified prior to the date hereof, the "Agreement"),
between AAMES CAPITAL CORPORATION, a California corporation (the "Borrower"),
and PRUDENTIAL SECURITIES CREDIT CORPORATION, a Delaware corporation (the
"Lender").
RECITALS
Pursuant to Extension No. 1, the Funding Termination Date was extended
from March 31, 1997 to September 30, 1997, and the Maximum Funding Amount was
increased from $125,000,000 to $250,000,000 for the period from March 31, 1997
to but excluding the earlier of June 30, 1997 and the date that the Certificates
shall be issued by the Aames Mortgage Trust 1997-B. The Borrower has requested
the Lender to agree to amend the Agreement to increase the Maximum Funding
Amount to $250,000,000 for the period commencing on the effective date of this
Amendment to but excluding the Funding Termination Date. The Lender is willing
to agree to such amendment, but only on the terms and subject to the conditions
set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower and the Lender hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Agreement are used herein as therein defined.
2. Amendment. The Agreement is hereby amended by deleting clause 1(ii)
of Extension No. 1 and substituting in lieu thereof a new clause 1(ii) to read
in its entirety as follows:
"(ii) that the Maximum Funding Amount for the Funding Period as
so extended by increased to $250,000,000; and"
3. Effectiveness. This Amendment shall become effective upon receipt by
the Lender of evidence satisfactory to the Lender that this Amendment has been
executed and delivered by the Borrower and the Guarantor. In addition, it shall
be a condition subsequent to effectiveness of this Amendment that the Agent
shall have received, within 7 days following the date hereof, an opinion of
counsel to the Borrower, substantially in the form of Exhibit A hereto.
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4. Representations and Warranties. To induce the Lender to enter into
this Amendment, the Borrower hereby represents and warrants to the Lender that,
after giving effect to the amendment provided for herein, the representations
and warranties contained in the Agreement, the Custodial Agreement and the
Guarantee will be true and correct in all material respects as if made on and as
of the date hereof and that no Default or Event of Default will have occurred
and be continuing.
5. No Other Amendments. Except as expressly amended hereby, the
Agreement, the Secured Note, the Custodial Agreement and the Guarantee shall
remain in full force and effect in accordance with their respective terms,
without any waiver, amendment or modification of any provision thereof.
6. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
7. Expenses. The Borrower agrees to pay and reimburse the Lender for all
of the out-of-pocket costs and expenses incurred by the Lender in connection
with the preparation, execution and delivery of this Amendment, including,
without limitation, the fees and disbursements of Cadwalader, Xxxxxxxxxx & Xxxx,
counsel to the Lender.
8. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
AAMES CAPITAL CORPORATION
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Senior Vice President -
Finance and Chief Accounting Officer
PRUDENTIAL SECURITIES CREDIT CORPORATION
By: /s/ XXXX X. XXXXXX
-----------------------------------------------
Name: Xxxx X. Xxxxxx
Title:
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EXHIBIT A
[LETTERHEAD OF COUNSEL TO THE BORROWER AND THE GUARANTOR]
August __, 1997
Prudential Securities Credit Corporation
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Gentlemen:
I am counsel to Aames Capital Corporation, a California
corporation (the "Borrower"), and Aames Financial Corporation, a Delaware
corporation (the "Guarantor"), and have acted as such in connection with the
execution and delivery of the following documents:
(i) the Interim Loan and Security Agreement, dated as of November
22, 1996 (the "Original Interim Loan Agreement"), between Prudential
Securities Credit Corporation (the "Lender") and the Borrower;
(ii) the Secured Note (the "Original Note") dated November 22,
1996, made by the Borrower in favor of the Lender, the Endorsement,
dated March 31, 1997, to the Secured Note (the "Endorsement"; the
Original Note, as amended by the Endorsement, is referred to as the
"Note");
(iii) the Custodial Agreement, dated as of November 22, 1996,
(the "Custodial Agreement"), among the Borrower, the Lender and Bankers
Trust Company of California, N.A. (the "Custodian");
(iv) the Intercreditor and Joint Shipment Agreement, dated as of
November 22, 1996 (the "Intercreditor Agreement"), among NationsBank of
Texas, N.A. and the Custodian, as joint custodians, the Lender and the
Borrower;
(v) the Guarantee, dated as of November 22, 1996 (the
"Guarantee"), made by the Guarantor in favor of the Lender;
(vi) the Notice of Extension of Agreement No. 1, dated May 15,
1997 with effect as of March 31, 1997 (the "Notice of Extension"),
between the Borrower and the Lender; and
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(vii) the Amendment, dated as of August __, 1997 (the
"Amendment"; the Original Interim Loan Agreement, as amended by the
Notice of Extension and the Amendment, is referred to as the "Interim
Loan Agreement"), between the Borrower and the Lender.
This opinion is being delivered to you pursuant to Section 3(b)
of the Amendment. Capitalized terms used herein and not defined herein shall
have the meanings assigned to them in the Interim Loan Agreement.
I have examined executed copies of the Interim Loan Agreement,
the Note, the Intercreditor Agreement, the Custodial Agreement, the Guarantee,
the Endorsement, the Notice of Extension and the Amendment. I have also examined
originals or photostatic or certified copies of all such corporate records of
the Borrower, and such certificates of public officials, certificates of
corporate officers, and other documents, as I have deemed appropriate and
necessary as a basis for the opinions hereinafter expressed. In making my
examination and rendering the opinions hereinafter expressed I have assumed that
each party to each of the Interim Loan Agreement, the Intercreditor Agreement,
and the Custodial Agreement (other than the Borrower) has the corporate power to
enter into and perform all of its obligations thereunder, (ii) the due
authorization, execution and delivery of each of the Interim Loan Agreement, the
Intercreditor Agreement and the Custodial Agreement by the parties thereto
(other than the Borrower) and (iii) the validity and binding effect on the
parties thereto (other than the Borrower) of each of the Interim Loan Agreement,
the Intercreditor Agreement and the Custodial Agreement.
The opinions expressed below with respect to enforceability are
subject to the following additional qualifications:
(a) The effect of bankruptcy, insolvency, reorganization,
moratorium, receivership, or other similar laws of general applicability
relating to or affecting creditors' rights generally in the event of
bankruptcy, insolvency, reorganization, moratorium or receivership.
(b) The application of general principles of equity, including,
but not limited to, the right of specific performance (regardless of
whether enforceability is considered in a proceeding in equity or at
law).
Based upon the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of California.
2. The Borrower has the corporate power and legal right to
execute and deliver the Amendment, to borrow under the Interim Loan Agreement,
as amended by the Amendment, and the Note, and to grant liens under the Interim
Loan Agreement, and has taken all necessary corporate action to authorize such
borrowing and such granting of liens upon the terms and conditions of the
Interim Loan Agreement, and to authorize the execution
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and delivery of the Amendment. The Borrower is duly licensed as a licensee or is
otherwise qualified in each state in which its ownership of property or the
conduct of its business requires such licensure or qualification and where
failure to be so licensed or qualified would have a material adverse effect on
the business of the Borrower, on the Collateral, on the ability of the Borrower
to pay or perform the Secured Obligations or on the rights and remedies of the
Lender under the Interim Loan Agreement, the Note, the Custodial Agreement, the
Intercreditor Agreement or the Guarantee, and the Borrower is, to our knowledge,
in compliance in all material respects with each such state's applicable
statutes, laws, rules and regulations. No consent of any other Person
(including, without limitation, stockholders of the Borrower), and no consent,
license, permit, approval or authorization of, or registration or declaration
with, any governmental authority, bureau of agency is required connection with
the execution and delivery of the Amendment or the enforceability of each of the
Interim Loan Agreement, and the Note.
3. Each of the Interim Loan Agreement, the Note, the
Intercreditor Agreement and the Custodial Agreement constitutes the legal,
valid, and binding obligation of the Borrower enforceable against the Borrower
in accordance with its respective terms.
4. The Guarantee constitutes the legal, valid, and binding
obligation of the Guarantor enforceable against the Guarantor in accordance with
its terms.
5. The execution and delivery of the Amendment and the
performance of each of the Interim Loan Agreement, and the Note will not violate
any provision of any existing Federal laws or the laws of the State of
California or of the charter or by-laws of the Borrower or of any mortgage,
indenture, contract or other undertaking to which, to the best of my knowledge
(after due inquiry), the Borrower is a party or which is binding upon it or its
assets, and, to the best of my knowledge (after due inquiry), will not result in
the creation or imposition of any lien, charge or encumbrance on any of its
assets pursuant to the provisions of any of the foregoing.
6. No litigation or administrative proceeding of or before any
governmental authority or court is currently pending, or, to the best of my
knowledge (after due inquiry), threatened, against the Borrower or its assets,
the liability with respect to which is likely to be material to the financial
position or results of operations of the Borrower.
7. Assuming that the Lender acquired the promissory notes (the
"Mortgage Notes") evidencing the Mortgage Loans for value, the Interim Loan
Agreement creates in favor of the Lender a security interest under the Uniform
Commercial Code (the "UCC") as currently in effect in New York in all rights of
the Borrower in the Mortgage Notes. Provided that on the date hereof (i) the
Custodian has acquired and maintains continuous possession of the Mortgage Notes
within the State of California and (ii) the Custodian is acting on behalf of the
Lender in accordance with the terms of the Custodial Agreement and no other
agreements or understandings, written or oral, govern the relationship between
the Custodian and the Lender, then, the security interest in the Mortgage Notes
granted by the Borrower to the Lender will be, on the date of possession of the
Mortgage Notes by the Custodian, perfected
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and prior to any other security interest which can be perfected under the
Uniform Commercial Code as currently in effect in California.
I am admitted to practice law in the State of California, and the
foregoing opinions are limited to the Federal laws of the United States, the
Delaware General Corporation Law and the laws of the State of California. I note
that the Interim Loan Agreement, the Note, the Custodial Agreement and the
Guarantee are governed by the law of the State of New York and, with your
consent, I have assumed for purposes of Paragraphs 3, 4 and the first sentence
of Paragraph 11 of this opinion that the law of the State of New York is
identical to the law of the State of California.
Sincerely yours,
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