<PAGE>
FORM 10-Q/A
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(MARK ONE)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED AUGUST 31, 1999
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM _________ TO _________
COMMISSION FILE NUMBER 001-12837
PAMECO CORPORATION
(Exact name of registrant as specified in its charter)
GEORGIA 51-0287654
(State or other jurisdiction (I.R.S. employer
of incorporation or organization identification number)
1000 CENTER PLACE
NORCROSS, GA 30093
(Address of principal executive offices)
(770)-798-0700
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter periods that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days Yes X No__
Number of shares outstanding of each of the issuer's classes of common
stock, as of the latest practical date. Class A Common Stock, $.01 par value,
5,560,432 shares and Class B Common Stock, $.01 par value, 3,648,958 shares,
both as of September 30, 1999.
<PAGE>
PAMECO CORPORATION
INDEX
PART II. OTHER INFORMATION
Item 6 Exhibits and Reports on Form 8-K.
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit No. Description
- ----------- -----------
10.14H Sixth Amendment and Waiver to the Amended and Restated
Credit Agreement dated August 25, 1999.
10.14I Seventh Amendment and Waiver to the Amended and Restated
Credit Agreement dated October 20, 1999.
10.19D Amendment No. 6 to Securitization Agreements, dated August 25,
1999.
10.19E Amendment No. 7 to Securitization Agreements, dated October 20,
1999.
27 Financial Data Schedule (for SEC use only), previously filed
with the Company's Quarterly Report on Form 10-Q, filed with
with the Securities and Exchange Commission on October 20, 1999.
(b) Reports on Form 8-K
On July 14, 1999, the Company filed a Form 8-K with the
Commission to announce its operating results for the fiscal
quarter ended May 31, 1999, the launch of a new web site, and the
appointment of certain personnel. Such filing included the
Company's unaudited balance sheet as of May 31, 1999 and
statement of operations for the three months ended May 31, 1999.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PAMECO CORPORATION
(Registrant)
By: /s/ Mark S. Sellers
------------------------------------
Mark S. Sellers
Vice Chairman and
Chief Financial Officer
November 3, 1999 (Mr. Sellers has been duly
authorized to sign on behalf of
the registrant)
<PAGE>
Exhibit Index
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Exhibit No. Description
- ----------- -----------
10.14H Sixth Amendment and Waiver to the Amended and Restated Credit
Agreement dated August 25, 1999.
10.14I Seventh Amendment and Waiver to the Amended and Restated
Credit Agreement dated October 20, 1999.
10.19D Amendment No. 6 to Securitization Agreements, dated August 25,
1999.
10.19E Amendment No. 7 to Securitization Agreements, dated October 20,
1999.
<PAGE>
Exhibit 10.14H
SIXTH AMENDMENT AND WAIVER
--------------------------
SIXTH AMENDMENT AND WAIVER (this "Amendment"), dated as of August 25,
---------
1999, to the Amended and Restated Credit Agreement, dated as of March 10, 1998
(as previously amended, and as the same is being and may be further amended,
restated, supplemented or otherwise modified from time to time, the "Credit
------
Agreement"), among PAMECO CORPORATION, a Georgia corporation (the "Company"),
- --------- -------
the lenders parties thereto (together with their respective successors and
permitted assigns, the "Lenders") and GENERAL ELECTRIC CAPITAL CORPORATION, a
-------
New York corporation, as agent for the Lenders (in such capacity, together with
its successors and permitted assigns, the "Agent").
-----
W I T N E S S E T H :
-------------------
WHEREAS, the Company has requested that the Agent and the Lenders
amend certain provisions of, and grant a certain waiver with respect to, the
Credit Agreement upon the terms and subject to the conditions set forth herein;
and
WHEREAS, the Agent and the Lenders have agreed to such amendments and
waiver only upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Credit Agreement are used
-------------
herein with the meanings set forth in the Credit Agreement unless otherwise
defined herein.
2. Amendment of Credit Agreement.
-----------------------------
(a) Amendment of Schedule 10.8. Schedule 10.8 to the Credit
--------------------------
Agreement is hereby replaced with Annex A attached hereto.
-------
3. Waiver. The Agent and the Lenders hereby waive the Event of
------
Default arising under Section 11(c) of the Credit Agreement caused solely by the
Company's failure to comply with subsections (a), (b), (d) and (e) of Schedule
10.8 to the Credit Agreement for the fiscal month ended June 30, 1999. The
foregoing waivers are limited to the specific purpose for which they are granted
and shall not be construed as a consent, waiver or other modification with
respect to any other term, condition or other provisions of any Loan Document or
any other Default or Event of Default now or hereafter existing.
4. Conditions to Effectiveness. This Amendment shall become
---------------------------
effective (the actual date of such effectiveness, the "Sixth Amendment Effective
-------------------------
Date") as of the date first above written when:
- ----
-1-
<PAGE>
(a) This Amendment shall have been duly executed and delivered by
each of the parties hereto.
(b) The Acknowledgment and Consent dated as of the date hereof by
the Company and Pameco Investment Company, Inc. shall have been duly
executed and delivered by each of the parties thereto.
(c) The Agent shall have received a certificate of the Secretary
or an Assistant Secretary of each Loan Party, dated as of the Sixth
Amendment Effective Date, and certifying (i) that attached thereto is a
true and complete copy of the resolutions (which resolutions are in form
and substance reasonably satisfactory to each Lender) of the board of
directors of such Loan Party authorizing, as applicable, the execution,
delivery and performance of this Amendment, the Acknowledgment and Consent
attached hereto and related matters, certified by the Secretary or an
Assistant Secretary of such Loan Party as of the Sixth Amendment Effective
Date and (ii) as to the incumbency and specimen signature of such Loan
Party's officers executing this Amendment and all other documents required
or necessary to be delivered hereunder or in connection herewith. Such
certificate shall state that the resolutions thereby certified have not
been amended, modified, revoked or rescinded as of the date of such
certificate.
(d) The Agent shall have received true and complete copies of the
certificate of incorporation and by-laws of each Loan Party, certified as
of the Sixth Amendment Effective Date as complete and correct copies
thereof by the Secretary or an Assistant Secretary of such Loan Party.
5. Company Representations and Warranties. The Company represents
--------------------------------------
and warrants that:
(a) Each of this Amendment and the Credit Agreement as amended by
this Amendment constitutes the legal, valid and binding obligation of the
Company.
(b) Each of the representations and warranties set forth in
Section 7 of the Credit Agreement are true and correct as of the Sixth
Amendment Effective Date; provided that references in the Credit Agreement
to this "Agreement" shall be deemed references to the Credit Agreement as
amended to date and by this Amendment.
(c) After giving effect to this Amendment, there does not exist
any Default or Event of Default.
6. Continuing Effect. Except as expressly waived hereby, the Credit
-----------------
Agreement shall continue to be and shall remain in full force and effect in
accordance with its terms.
7. Expenses. The Company agrees to pay and reimburse the Agent for
--------
all of its out-of-pocket costs and expenses incurred in connection with the
negotiation, preparation,
-2-
<PAGE>
execution, and delivery of this Amendment, including the fees and expenses of
counsel to the Agent.
8. Counterparts. This Amendment may be executed on any number of
------------
separate counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Amendment by telecopy shall be effective
as delivery of a manually executed counterpart of this Amendment.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
-------------
AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
[signature page follows]
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment and
Waiver to be duly executed and delivered in New York, New York by their proper
and duly authorized officers as of the day and year first above written.
PAMECO CORPORATION
By: _________________________________
Title: ______________________________
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and as a Lender
By: _________________________________
Title: Duly Authorized Signatory
WACHOVIA BANK, N.A.
By: _________________________________
Title: ______________________________
NATIONSBANK, N.A.
By: _________________________________
Title: ______________________________
SUNTRUST BANK, ATLANTA
By: _________________________________
Title: ______________________________
By: _________________________________
Title: ______________________________
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<PAGE>
ANNEX A
-------
SCHEDULE 10.8
to
Credit Agreement
FINANCIAL COVENANTS
-------------------
The Company shall not breach or fail to comply with any of the
following financial covenants, each of which shall be calculated in accordance
with GAAP, consistently applied:
(a) Company EBITDA. As of the last day of each fiscal period of the
--------------
Company, the Consolidated EBITDA for the preceding twelve consecutive fiscal
months shall not be less than the amount set forth below opposite such period:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Amount
--------------------- -----------
<S> <C>
August 31, 1999 $18,343,000
November 30, 1999 $18,724,000
February 29, 2000 $17,246,000
For each fiscal quarter thereafter $20,000,000
Fiscal Month Ending Amount
------------------- -----------
July 31, 1999 $18,196,000
September 30, 1999 $18,001,000
October 31, 1999 $17,925,000
December 31, 1999 $17,659,000
January 31, 2000 $17,936,000
</TABLE>
(b) Fixed Charge Coverage Ratio. As of the last day of each fiscal
---------------------------
quarter of the Company, the ratio of (i) Consolidated EBITDA to (ii)
Consolidated Fixed Charges for the preceding twelve consecutive fiscal months
(the "Fixed Charge Coverage Ratio") shall not be less than the ratio set forth
---------------------------
below opposite such period:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Ratio
--------------------- ------------
<S> <C>
August 31, 1999 1.09 to 1.00
November 30, 1999 1.02 to 1.00
February 29, 2000 0.85 to 1.00
For each fiscal quarter thereafter 1.25 to 1.00
</TABLE>
(c) Maintenance of Net Worth. (i) The Company Net Worth on the last
------------------------
day of each fiscal quarter ending on the day set forth below shall not be less
than the amount set forth opposite such date:
-5-
<PAGE>
Fiscal Year Ending Amount
------------------ -----------
May 31, 1998 $65,000,000
August 31, 1998 $65,000,000
November 30, 1998 $65,000,000
February 28, 1999 $65,000,000 plus 50% of
----
Consolidated Net Income for the
fiscal year then ended
(ii) Commencing with the fiscal year of the Company ending on February
29, 2000, (A) the Company Net Worth on the last day of each of the first, second
and third fiscal quarters of each fiscal year of the Company shall not be less
than the minimum Company Net Worth of the Company required pursuant to this
paragraph (c) for the fourth quarter of the immediately preceding fiscal year of
the Company and (B) the Company Net Worth on the last day of each fiscal year of
the Company shall not be less than the minimum Company Net Worth required
pursuant to this paragraph (c) for the third quarter of such fiscal year plus
----
50% of Consolidated Net Income for such fiscal year.
(d) Consolidated Senior Debt Leverage Ratio. As of the last day of
---------------------------------------
any fiscal period of the Company, the Consolidated Senior Debt Leverage Ratio
shall not be greater than the ratio set forth below opposite such period:
Fiscal Quarter Ending Ratio
--------------------- -------------
August 31, 1999 9.87 to 1.00
November 30, 1999 9.78 to 1.00
February 29, 2000 11.58 to 1.00
For each fiscal quarter thereafter 5.00 to 1.00
Fiscal Month Ending Ratio
------------------- -------------
July 31, 1999 9.34 to 1.00
September 30, 1999 10.08 to 1.00
October 31, 1999 10.17 to 1.00
December 31, 1999 10.85 to 1.00
January 31, 2000 10.70 to 1.00
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<PAGE>
(e) Consolidated Total Debt Leverage Ratio. As of the last day of any
--------------------------------------
fiscal quarter of the Company, the Consolidated Total Debt Leverage Ratio shall
not be greater than the ratio set forth below opposite such period:
Fiscal Quarter Ending Ratio
--------------------- -------------
August 31, 1999 9.89 to 1.00
November 30, 1999 9.83 to 1.00
February 29, 2000 11.59 to 1.00 For each fiscal quarter
thereafter 6.00 to 1.00
-7-
<PAGE>
ACKNOWLEDGMENT AND CONSENT
ACKNOWLEDGMENT AND CONSENT (this "Acknowledgment and Consent"), dated
--------------------------
as of August ___, 1999, to the documents listed on Schedule 1 hereto (the
"Documents") made by each of the signatories hereto (each a "Grantor"), in favor
- ---------- -------
of GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation, as agent (in
such capacity, the "Agent") for the lenders (the "Lenders") from time to time
----- -------
parties to the Amended and Restated Credit Agreement referred to below.
W I T N E S S E T H
WHEREAS, Pameco Corporation (the "Company"), the Lenders and the Agent
-------
entered into the Amended and Restated Credit Agreement dated as of March 10,
1998 (as previously amended, and as the same may be further amended, restated,
supplemented or otherwise modified from time to time, the "Amended and Restated
--------------------
Credit Agreement"); and
- ----------------
WHEREAS, to secure and guarantee the obligations of the Company under
the Amended and Restated Credit Agreement, each Grantor entered into Documents
to which it is a party; and
WHEREAS, the Amended and Restated Credit Agreement was amended on the
date hereof pursuant to the Sixth Amendment and Waiver, dated as of this date,
among the Company, the Lenders and the Agent (the "Amendment"; the Amended and
---------
Restated Credit Agreement as amended by the Amendment, the "Amended Agreement");
-----------------
and
WHEREAS, it is a condition precedent to the effectiveness of the
Amendment that each Grantor execute and deliver this Acknowledgment and Consent
to confirm that the security interests granted under the Documents secure the
Obligations of the Company under the Amended Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other valuable consideration, the receipt of which is
hereby acknowledged, each Grantor and the Agent hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms which are
-------------
defined in the Amended and Restated Credit Agreement and used herein are so used
as so defined.
2. Representations and Warranties. Each Grantor represents and
------------------------------
warrants that upon the execution and delivery of this Acknowledgment and
Consent, the Documents, as acknowledged and consented to hereby, shall
constitute a valid and continuing lien on and, to the extent provided therein,
perfected security interest in, the collateral referred to in the Documents, as
acknowledged and consented to hereby, in favor of the Agent for the ratable
benefit of the Lenders.
3. Acknowledgment and Consent. Each Grantor hereby:
--------------------------
-8-
<PAGE>
(a) acknowledges and consents to the execution, delivery and
performance of (i) the Amendment and (ii) all of the documents and
transactions contemplated thereby;
(b) agrees that such execution, delivery and performance shall
not in any way affect such Grantor's obligations under any Loan Document
(as defined in the Amended Agreement) to which such Grantor is a party,
which obligations on the date hereof remain absolute and unconditional and
are not subject to any defense, set-off or counterclaim; and
(c) grants to the Agent, for the ratable benefit of the Lenders,
and pursuant to the terms and conditions of the Documents a continuing lien
on and security interest in all collateral described in the Documents as
security for the Obligations (as defined in the Amended Agreement).
4. Miscellaneous.
-------------
(a) This Acknowledgment and Consent may be executed in any number
of separate counterparts, and all of said counterparts taken together shall
constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Acknowledgment and Consent by
telecopy shall be effective as delivery of a manually executed counterpart
of this Acknowledgment and Consent.
(b) This Acknowledgment and Consent shall become effective when
executed by each Grantor and the Agent.
(c) THIS ACKNOWLEDGMENT AND CONSENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
[signature page follows]
-9-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Acknowledgment and
Consent to be executed and delivered by their respective duly authorized
officers as of the date first written above.
PAMECO CORPORATION
By: _____________________________
Name: __________________________
Title: ___________________________
PAMECO INVESTMENT COMPANY, INC.
By: _____________________________
Name: __________________________
Title: ___________________________
-10-
<PAGE>
Schedule 1 to
-------------
Acknowledgment and Consent
--------------------------
DOCUMENTS
The Company Security Agreement dated as of March 19, 1992 by Pameco
Corporation in favor of General Electric Capital Corporation, as Agent
The Pledge Agreement dated as of April 29, 1996 by Pameco Corporation in
favor of General Electric Capital Corporation, as Agent
The Intercreditor Agreement dated as of April 29, 1996 among Pameco
Corporation, Pameco Securitization Corporation, Redwood Receivables Corporation
and General Electric Capital Corporation
The Pledge Agreement dated as of December 1, 1997 by Pameco Corporation in
favor of General Electric Capital Corporation, as Agent
The Subsidiary Guarantee dated as of December 1, 1997 by Pameco Investment
Company, Inc. in favor of General Electric Capital Corporation, as Agent
The Subsidiary Security Agreement dated as of December 1, 1997 by Pameco
Investment Company, Inc. in favor of General Electric Capital Corporation, as
Agent
The Trademark Security Agreement dated as of December 1, 1997 by Pameco
Investment Company, Inc. in favor of General Electric Capital Corporation, as
Agent
-11-
<PAGE>
Exhibit 10.14I
SEVENTH AMENDMENT AND WAIVER
----------------------------
SEVENTH AMENDMENT AND WAIVER (this "Amendment"), dated as of October
---------
20, 1999, to the Amended and Restated Credit Agreement, dated as of March 10,
1998 (as previously amended, and as the same is being and may be further
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among PAMECO CORPORATION, a Georgia corporation (the
- -----------------
"Company"), the lenders parties thereto (together with their respective
- --------
successors and permitted assigns, the "Lenders") and GENERAL ELECTRIC CAPITAL
-------
CORPORATION, a New York corporation, as agent for the Lenders (in such capacity,
together with its successors and permitted assigns, the "Agent").
-----
W I T N E S S E T H :
-------------------
WHEREAS, the Company has requested that the Agent and the Lenders
amend certain provisions of, and grant a certain waiver with respect to, the
Credit Agreement upon the terms and subject to the conditions set forth herein;
and
WHEREAS, the Agent and the Lenders have agreed to such amendments and
waiver only upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Credit Agreement are used
-------------
herein with the meanings set forth in the Credit Agreement unless otherwise
defined herein.
2. Amendment of Credit Agreement.
-----------------------------
(a) Amendment of Section 1.1. Section 1.1 is hereby amended by:
------------------------
(i) deleting the definitions of "Borrowing Base Certificate"
and "Interest Payment Date" and substituting therefor the following:
"Borrowing Base Certificate" shall mean either a Monthly
--------------------------
Borrowing Base Certificate, a Weekly Borrowing Base Certificate or a
Daily Borrowing Base Certificate, as applicable.
"Interest Payment Date" shall mean (a) as to any Index Rate
---------------------
Loan, Swingline Loan or Revolving Credit Loan, the first Business Day
of each month to occur while such Loan is outstanding (b) as to any
Eurodollar Loan (other than a Swingline Loan), one Business Day after
the last day of the Interest Period for such Loan.
(ii) adding the following new defined term "Daily Borrowing Base
Certificate" (in alphabetical order):
<PAGE>
"Daily Borrowing Base Certificate" shall mean a certificate
--------------------------------
substantially in the form of Exhibit B-3, delivered pursuant to
subsection 9.2(h).
(b) Amendment of Section 3.3. Section 3.3 is hereby amended by
------------------------
deleting the last sentence thereof and substituting therefor the
following:
"The Agent shall then make such borrowing available to the Company
after 2:00 p.m., New York City time, on the Borrowing Date by wiring
to a financial institution designated by the Company the aggregate of
the amounts made available to the Agent by the Revolving Credit
Lenders and in like funds as received by the Agent.
(c) Amendment of Section 9.2. Section 9.2 is hereby amended by adding
-------------------------
the following paragraphs thereto:
(h) on each Business Day, no later than 11:30 a.m., New York
City time, a Daily Borrowing Base Certificate for the previous
day's activity in the form attached hereto as Exhibit B-3, which
-----------
certificate shall be true and accurate as of the date thereof.
(i) on each Business Day, no later than 11:30 a.m., New York
City time, a certificate of the chief financial officer of the
Company in the form attached hereto as Exhibit I, which
---------
certificate shall be true and accurate as of the date thereof.
(j) on each Business Day, no later than 11:30 a.m., New York
City time, daily perpetual reports of Inventory and a daily
reconciliation of Inventory from perpetual to general ledger in
the form attached hereto as Exhibit J.
---------
(c) Amendment of Section 11. Section 11 is hereby amended by deleting
-----------------------
paragraph (e) in its entirety and substituting therefor the following:
(e) Other Covenants. (i) Default by any Loan Party in the
---------------
observance or performance of any agreement contained in Section
9.1 or 9.2 and the continuance of such default unremedied for a
period of 2 Business Days or (ii) default by any Loan Party in
the observance or performance of any other agreement contained in
this Agreement or any other Loan Document to which it is a party
(other than as provided in paragraphs (a), (b), (c), (d) or
(e)(i) of this Section 11) and the continuance of such default
unremedied for a period of 10 days; or
3. Waiver. The Agent and the Lenders hereby waive the Event of
------
Default arising under Section 11(c) of the Credit Agreement caused solely by the
Company's failure to comply with subsections (a), (b), (c), (d) and (e) of
Schedule 10.8 to the Credit Agreement for the fiscal months ended August 31,
1999 and September 30, 1999. The foregoing waivers are limited to the specific
purpose for which they are granted and shall not be construed as a consent,
-2-
<PAGE>
waiver or other modification with respect to any other term, condition or other
provisions of any Loan Document or any other Default or Event of Default now or
hereafter existing.
4. Conditions to Effectiveness. This Amendment shall become
---------------------------
effective (the actual date of such effectiveness, the "Seventh Amendment
-----------------
Effective Date") as of the date first above written when:
- --------------
(a) This Amendment shall have been duly executed and delivered
by each of the parties hereto.
(b) An initial Daily Borrowing Base Certificate, dated the
Seventh Amendment Effective Date, shall have been duly executed and
delivered by the Company.
(c) A certificate of the chief financial officer of the Company,
dated the Seventh Amendment Effective Date, in the form of Exhibit I hereto
---------
shall have been duly executed and delivered by the Company.
(d) The Acknowledgment and Consent dated as of the date hereof
by the Company and Pameco Investment Company, Inc. shall have been duly
executed and delivered by each of the parties thereto.
(e) The Agent shall have received a certificate of the Secretary
or an Assistant Secretary of each Loan Party, dated as of the Seventh
Amendment Effective Date, and certifying (i) that attached thereto is a
true and complete copy of the resolutions (which resolutions are in form
and substance reasonably satisfactory to each Lender) of the board of
directors of such Loan Party authorizing, as applicable, the execution,
delivery and performance of this Amendment, the Acknowledgment and Consent
attached hereto and related matters, certified by the Secretary or an
Assistant Secretary of such Loan Party as of the Seventh Amendment
Effective Date and (ii) as to the incumbency and specimen signature of such
Loan Party's officers executing this Amendment and all other documents
required or necessary to be delivered hereunder or in connection herewith.
Such certificate shall state that the resolutions thereby certified have
not been amended, modified, revoked or rescinded as of the date of such
certificate.
(f) The Agent shall have received true and complete copies of
the certificate of incorporation and by-laws of each Loan Party, certified
as of the Seventh Amendment Effective Date as complete and correct copies
thereof by the Secretary or an Assistant Secretary of such Loan Party.
5. Company Representations and Warranties. The Company represents
--------------------------------------
and warrants that:
(a) Each of this Amendment and the Credit Agreement as amended
by this Amendment constitutes the legal, valid and binding obligation of
the Company.
(b) Each of the representations and warranties set forth in
Section 7 of the Credit Agreement are true and correct as of the Seventh
Amendment Effective Date;
-3-
<PAGE>
provided that references in the Credit Agreement to this "Agreement" shall
be deemed references to the Credit Agreement as amended to date and by this
Amendment.
(c) After giving effect to this Amendment, there does not exist
any Default or Event of Default.
6. Acknowledgement. The Company further acknowledges and agrees
---------------
that: (i) the Company ratifies and reaffirms all of the terms and conditions of
the Loan Documents, including its liability for the Obligations as defined
therein; and (ii) the parties have not entered into a mutual disregard of the
terms and provisions of the Loan Documents (including through the execution of
this Amendment) or engaged in any course of dealing in variance with the terms
and provisions of the Loan Documents, within the meaning of any applicable law
of the State of New York or otherwise.
In order to induce the Agent and the Lenders to execute, deliver
and perform this Amendment, the Company represents and warrants that there are
no claims, causes of action, suits, debts, obligations, liabilities, demands of
any kind, character or nature whatsoever, fixed or contingent, which the Company
may have, or claim to have, against the Agent and the Lenders, and the Company
hereby releases, acquit and forever discharges the Agent and the Lenders and
their respective agents, employees, officers, directors, servants,
representatives, attorneys, affiliates, successors and assigns (collectively,
the "Released Parties") from any an all liabilities, claims, suits, debts,
causes of action and the like of any kind, character or nature whatsoever, known
or unknown, fixed or contingent that the Company may have, or claim to have,
against each of the Released Parties from the beginning of time until and
through the dates of execution and delivery of this Amendment.
7. Continuing Effect. Except as expressly waived hereby, the Credit
-----------------
Agreement shall continue to be and shall remain in full force and effect in
accordance with its terms.
8. Expenses. The Company agrees to pay and reimburse the Agent for
--------
all of its out-of-pocket costs and expenses incurred in connection with the
negotiation, preparation, execution, and delivery of this Amendment, including
the fees and expenses of counsel to the Agent.
9. Counterparts. This Amendment may be executed on any number of
------------
separate counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Amendment by telecopy shall be effective
as delivery of a manually executed counterpart of this Amendment.
10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
[signature page follows]
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Seventh
Amendment and Waiver to be duly executed and delivered in New York, New York by
their proper and duly authorized officers as of the day and year first above
written.
PAMECO CORPORATION
By: _________________________
Title: ______________________
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and as a Lender
By: _________________________
Title: Duly Authorized Signatory
WACHOVIA BANK, N.A.
By: _________________________
Title: ______________________
NATIONSBANK, N.A.
By: _________________________
Title: ______________________
SUNTRUST BANK, ATLANTA
By: _________________________
Title: ______________________
By: _________________________
Title: ______________________
<PAGE>
ACKNOWLEDGMENT AND CONSENT
ACKNOWLEDGMENT AND CONSENT (this "Acknowledgment and Consent"), dated
--------------------------
as of October ___, 1999, to the documents listed on Schedule 1 hereto (the
"Documents") made by each of the signatories hereto (each a "Grantor"), in favor
- ---------- -------
of GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation, as agent (in
such capacity, the "Agent") for the lenders (the "Lenders") from time to time
----- -------
parties to the Amended and Restated Credit Agreement referred to below.
W I T N E S S E T H
WHEREAS, Pameco Corporation (the "Company"), the Lenders and the Agent
-------
entered into the Amended and Restated Credit Agreement dated as of March 10,
1998 (as previously amended, and as the same may be further amended, restated,
supplemented or otherwise modified from time to time, the "Amended and Restated
--------------------
Credit Agreement"); and
- ----------------
WHEREAS, to secure and guarantee the obligations of the Company under
the Amended and Restated Credit Agreement, each Grantor entered into Documents
to which it is a party; and
WHEREAS, the Amended and Restated Credit Agreement was amended on the
date hereof pursuant to the Seventh Amendment and Waiver, dated as of this date,
among the Company, the Lenders and the Agent (the "Amendment"; the Amended and
---------
Restated Credit Agreement as amended by the Amendment, the "Amended Agreement");
-----------------
and
WHEREAS, it is a condition precedent to the effectiveness of the
Amendment that each Grantor execute and deliver this Acknowledgment and Consent
to confirm that the security interests granted under the Documents secure the
Obligations of the Company under the Amended Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other valuable consideration, the receipt of which is
hereby acknowledged, each Grantor and the Agent hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms which are
-------------
defined in the Amended and Restated Credit Agreement and used herein are so used
as so defined.
2. Representations and Warranties. Each Grantor represents and
------------------------------
warrants that upon the execution and delivery of this Acknowledgment and
Consent, the Documents, as acknowledged and consented to hereby, shall
constitute a valid and continuing lien on and, to the extent provided therein,
perfected security interest in, the collateral referred to in the Documents, as
acknowledged and consented to hereby, in favor of the Agent for the ratable
benefit of the Lenders.
3. Acknowledgment and Consent. Each Grantor hereby:
--------------------------
<PAGE>
(a) acknowledges and consents to the execution, delivery and
performance of (i) the Amendment and (ii) all of the documents and
transactions contemplated thereby;
(b) agrees that such execution, delivery and performance shall
not in any way affect such Grantor's obligations under any Loan Document
(as defined in the Amended Agreement) to which such Grantor is a party,
which obligations on the date hereof remain absolute and unconditional and
are not subject to any defense, set-off or counterclaim; and
(c) grants to the Agent, for the ratable benefit of the Lenders,
and pursuant to the terms and conditions of the Documents a continuing lien
on and security interest in all collateral described in the Documents as
security for the Obligations (as defined in the Amended Agreement).
4. Miscellaneous.
-------------
(a) This Acknowledgment and Consent may be executed in any
number of separate counterparts, and all of said counterparts taken
together shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page to this Acknowledgment and Consent
by telecopy shall be effective as delivery of a manually executed
counterpart of this Acknowledgment and Consent.
(b) This Acknowledgment and Consent shall become effective when
executed by each Grantor and the Agent.
(c) THIS ACKNOWLEDGMENT AND CONSENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
[signature page follows]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Acknowledgment
and Consent to be executed and delivered by their respective duly authorized
officers as of the date first written above.
PAMECO CORPORATION
By: _____________________________
Name: __________________________
Title: ___________________________
PAMECO INVESTMENT COMPANY, INC.
By: _____________________________
Name: __________________________
Title: ___________________________
<PAGE>
Schedule 1 to
-------------
Acknowledgment and Consent
--------------------------
DOCUMENTS
The Company Security Agreement dated as of March 19, 1992 by Pameco
Corporation in favor of General Electric Capital Corporation, as Agent
The Pledge Agreement dated as of April 29, 1996 by Pameco Corporation in
favor of General Electric Capital Corporation, as Agent
The Intercreditor Agreement dated as of April 29, 1996 among Pameco
Corporation, Pameco Securitization Corporation, Redwood Receivables Corporation
and General Electric Capital Corporation
The Pledge Agreement dated as of December 1, 1997 by Pameco Corporation in
favor of General Electric Capital Corporation, as Agent
The Subsidiary Guarantee dated as of December 1, 1997 by Pameco Investment
Company, Inc. in favor of General Electric Capital Corporation, as Agent
The Subsidiary Security Agreement dated as of December 1, 1997 by Pameco
Investment Company, Inc. in favor of General Electric Capital Corporation, as
Agent
The Trademark Security Agreement dated as of December 1, 1997 by Pameco
Investment Company, Inc. in favor of General Electric Capital Corporation, as
Agent
<PAGE>
Exhibit 10.19D
AMENDMENT NO. 6
TO SECURITIZATION AGREEMENTS
AMENDMENT NO. 6 TO SECURITIZATION AGREEMENTS, dated as of August 25,
1999, among PAMECO SECURITIZATION CORPORATION, a Delaware company ("PSC"),
---
PAMECO CORPORATION, a Georgia company ("Pameco"), REDWOOD RECEIVABLES
------
CORPORATION ("Redwood") and GENERAL ELECTRIC CAPITAL CORPORATION, a New York
-------
company ("GECC").
----
WHEREAS, Pameco, as originator (in such capacity, the "Originator")
----------
and PSC are parties to a Receivables Transfer Agreement, dated as of April 29,
1996 (as heretofore amended, supplemented or otherwise modified, the "Transfer
--------
Agreement");
- ---------
WHEREAS, PSC, as seller (in such capacity, the "Seller"), Redwood, as
------
purchaser (in such capacity, the "Purchaser"), GECC, as operating agent (in such
---------
capacity, the "Operating Agent") and collateral agent (in such capacity, the
---------------
"Collateral Agent") and Pameco, as servicer (in such capacity, the "Servicer")
- ----------------- --------
are parties to a Receivables Purchase and Servicing Agreement, dated as of April
29, 1996 (as heretofore amended, supplemented or otherwise modified, the
"Purchase Agreement");
- -------------------
WHEREAS, Redwood and GECC are parties to a Liquidity Loan Agreement,
dated as of April 29, 1996 (as heretofore amended, supplemented or otherwise
modified, the "Liquidity Agreement"; together with the Transfer Agreement and
-------------------
the Purchase Agreement, the "Securitization Agreements"); and
-------------------------
WHEREAS, the parties hereto desire to amend the Securitization
Agreements and certain ancillary documents and agreements referred to therein in
the manner set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. All capitalized terms used herein, unless
-----------
otherwise defined, are used as defined in the Purchase Agreement.
ARTICLE II
AMENDMENTS TO PURCHASE AGREEMENT AND ANNEX X
SECTION 2.1 Amendment to Exhibit H. Exhibit H to the Purchase
----------------------
Agreement is hereby amended by:
-1-
<PAGE>
(a) deleting subsection 1(a) in its entirety and replacing it with the
following:
"(a) Servicer EBITDA. As of the last day of each fiscal quarter of
---------------
the Servicer, the Consolidated EBITDA for the preceding twelve consecutive
fiscal months shall not be less than the amount set forth below opposite
such period:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Amount
--------------------- ------------
<S> <C>
August 31, 1999 $ 18,343,000
November 30, 1999 $ 18,724,000
February 29, 2000 $ 17,246,000
For each fiscal quarter thereafter $ 20,000,000"
</TABLE>
(b) deleting subsection 1(c) in its entirety and replacing it with the
following:
"(c) Fixed Charge Coverage Ratio. As of the last day of each
---------------------------
fiscal quarter of the Servicer, the ratio of (i) Consolidated EBITDA to
(ii) Consolidated Fixed Charges for the preceding twelve consecutive fiscal
months shall not be less than the ratio set forth below opposite such
period:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Ratio
--------------------- -------------
<S> <C>
August 31, 1999 1.09 to 1.00
November 30, 1999 1.02 to 1.00
February 29, 2000 0.85 to 1.00
For each fiscal quarter thereafter 1.25 to 1.00"
</TABLE>
ARTICLE III
WAIVER
SECTION 3.1 Waiver. The Operating Agent, Redwood and the Collateral
------
Agent hereby waive the Termination Event and Event of Servicer Termination
arising under Sections 9.01(l) and 9.02(f) of the Purchase Agreement caused
solely by the Company's failure to comply with the covenants set forth in
Exhibit H to the Purchase Agreement for the fiscal quarter ended May 31, 1999.
The foregoing waivers are limited to the specific purpose for which they are
granted and shall not be construed as a consent, waiver or other modification
with respect to any other term, condition or other provisions of any Related
Document or any other Termination Event and Event of Servicer Termination now or
hereafter existing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties of PSC and Pameco. Each
------------------------------------------------
of PSC and Pameco represents and warrants that:
(a) this Amendment No. 6 has been duly authorized, executed and
delivered by each such party which is a signatory thereto;
-2-
<PAGE>
(b) this Amendment No. 6 constitutes the legal, valid and binding
obligation of each such party which is a signatory thereto; and
(c) each of the representations and warranties of such party set forth
in the Securitization Agreements is true and correct as of the Amendment
Effective Date (as defined below) and on such Amendment Effective Date is also
made with respect to the Insurer; provided, that references in the
-------- ----
Securitization Agreements to the Purchase Agreement and to the Transfer
Agreement, shall be deemed references to the Purchase Agreement as amended by
this Amendment No. 6 and to the Transfer Agreement as amended by this Amendment
No. 6, respectively.
SECTION 4.2 Representations and Warranties of Redwood. Redwood
-----------------------------------------
represents and warrants that:
(a) this Amendment No. 6 has been duly authorized, executed and
delivered by Redwood;
(b) this Amendment No. 6 constitutes the legal, valid and binding
obligation of Redwood; and
(c) each of the representations and warranties of Redwood set forth
in the Securitization Agreements is true and correct as of the Amendment
Effective Date (as defined below); provided, that references in the
-------- ----
Securitization Agreements to the Purchase Agreement and to the Transfer
Agreement, shall be deemed references to the Purchase Agreement as amended by
this Amendment No. 6 and to the Transfer Agreement as amended by this Amendment
No. 6, respectively.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1 Conditions Precedent. This Amendment No. 6 shall
--------------------
become effective (the actual date of such effectiveness, the "Amendment
---------
Effective Date") as of the date first above written subject to satisfaction of
- --------------
the following conditions precedent in form and substance satisfactory to the
Operating Agent:
(a) Counterparts hereof shall have been duly executed and delivered by
the parties hereto;
(b) the Operating Agent shall have received a certificate of the
Secretary or an Assistant Secretary of each of the Seller and the Servicer,
dated as of the Amendment Effective Date, and certifying (i) the names and true
signatures of the officers authorized on its behalf to sign this Amendment No.
6, (ii) a copy of such party's certificate of incorporation and by-laws, and
(iii) a copy of the resolutions of the board of directors of such party
approving this Amendment No. 6 and the related transactions to which it is a
party, all in form and substance satisfactory to the Operating Agent. Such
certificate shall state that the resolutions thereby
-3-
<PAGE>
certified have not been amended, modified, revoked or rescinded as of the date
of such certificate;
(c) the Operating Agent shall have received an Officer's Certificate
from each of the Seller and the Servicer in the forms of Annexes A-1 and A-2
hereto, respectively;
(d) PSC shall have received a certificate of the Secretary or an
Assistant Secretary of the Originator, dated as of the Amendment Effective Date,
and certifying (i) the names and true signatures of the officers authorized on
its behalf to sign this Amendment No. 6, (ii) a copy of the Originator's
certificate of incorporation and by-laws, and (iii) a copy of the resolutions of
the board of directors of the Originator approving this Amendment No. 6 and the
related transactions to which it is a party. Such certificate shall state that
the resolutions thereby certified have not been amended, modified, revoked or
rescinded as of the date of such certificate; and
(e) PSC and Pameco shall have taken such other actions and provided
such documentation as the Operating Agent may request.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Counterparts. This Amendment No. 6 may be executed on
------------
any number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
SECTION 6.2 GOVERNING LAW. THIS AMENDMENT NO. 6 SHALL BE GOVERNED
-------------
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
SECTION 6.3 Expenses. Pameco agrees to pay and reimburse the
--------
Operating Agent for all of its out-of-pocket costs and expenses incurred in
connection with the negotiation, preparation, execution, and delivery of this
Amendment No. 6, including the reasonable fees and expenses of counsel to the
Operating Agent and the Collateral Agent.
[signature page follows]
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 6 to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
PAMECO SECURITIZATION CORPORATION
By ________________________
Title:
REDWOOD RECEIVABLES CORPORATION
By _______________________
Title:
PAMECO CORPORATION
By _______________________
Title:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Operating Agent and Collateral Agent
By _______________________
Title:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Liquidity Agent
By _______________________
Title:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Letter of Credit Agent and
Letter of Credit Provider
By _______________________
Title:
-5-
<PAGE>
ANNEX A-1
FORM OF OFFICER'S CERTIFICATE OF SELLER
---------------------------------------
Pameco Securitization Corporation
Officer's Certificate
I, [Name of Officer], the duly elected [Insert Title] of Pameco
Securitization Corporation (the "Seller"), hereby certify pursuant to Section
5.1(c) of Amendment No. 6 to Securitization Agreements, dated as of the date
hereof ("Amendment No. 6"; capitalized terms used but not defined in this
Officer's Certificate having the meaning set forth in Amendment No. 6), between
the Seller, Pameco Corporation, Redwood Receivables Corporation (the
"Purchaser") and General Electric Capital Corporation, and for the benefit of
the Purchaser, the Operating Agent and General Electric Capital Corporation, as
follows:
(1) after giving effect to the effectiveness of Amendment No. 6, no
Termination Event or Incipient Event will have occurred and be continuing; and
(2) the representations and warranties of the Seller contained in
Section 4.01 of the Purchase Agreement, in the Transfer Agreement and in any
other document, certificate or financial or other statement delivered by the
Seller in connection with the Purchase Agreement or the Transfer Agreement are
true and correct in all material respects and with the same force and effect as
though such representations and warranties had been made as of such date, except
to the extent any such representations and warranties relate solely to an
earlier date.
IN WITNESS WHEREOF, I have signed and delivered this Officer's
Certificate this ___ day of August, 1999.
PAMECO SECURITIZATION CORPORATION
By:_________________________
Name:
Title:
-6-
<PAGE>
ANNEX A-2
FORM OF OFFICER'S CERTIFICATE OF SERVICER
-----------------------------------------
Pameco Corporation
Officer's Certificate
I, [Name of Officer], the duly elected [Insert Title] of Pameco
Corporation (the "Servicer"), hereby certify pursuant to Section 5.1(c) of
Amendment No. 6 to Securitization Agreements, dated as of the date hereof
("Amendment No. 6"; capitalized terms used but not defined in this Officer's
Certificate having the meaning set forth in Amendment No. 6), between Pameco
Securitization Corporation, the Servicer, Redwood Receivables Corporation (the
"Purchaser") and General Electric Capital Corporation, and for the benefit of
the Purchaser, the Operating Agent and General Electric Capital Corporation, as
follows:
(1) after giving effect to the effectiveness of Amendment No. 6, no
Termination Event or Incipient Event will have occurred and be continuing; and
(2) the representations and warranties of the Seller contained in
Section 4.01 of the Purchase Agreement, in the Transfer Agreement and in any
other document, certificate or financial or other statement delivered by the
Seller in connection with the Purchase Agreement or the Transfer Agreement are
true and correct in all material respects and with the same force and effect as
though such representations and warranties had been made as of such date, except
to the extent any such representations and warranties relate solely to an
earlier date.
IN WITNESS WHEREOF, I have signed and delivered this Officer's
Certificate this ___ day of August, 1999.
PAMECO CORPORATION
By:_________________________
Name:
Title:
-7-
<PAGE>
Exhibit 10.19E
AMENDMENT NO. 7
TO SECURITIZATION AGREEMENTS
AMENDMENT NO. 7 TO SECURITIZATION AGREEMENTS, dated as of October 20,
1999, among PAMECO SECURITIZATION CORPORATION, a Delaware company ("PSC"),
---
PAMECO CORPORATION, a Georgia company ("Pameco"), REDWOOD RECEIVABLES
------
CORPORATION ("Redwood") and GENERAL ELECTRIC CAPITAL CORPORATION, a New York
-------
company ("GECC").
----
WHEREAS, Pameco, as originator (in such capacity, the "Originator")
----------
and PSC are parties to a Receivables Transfer Agreement, dated as of April 29,
1996 (as heretofore amended, supplemented or otherwise modified, the "Transfer
--------
Agreement");
- ---------
WHEREAS, PSC, as seller (in such capacity, the "Seller"), Redwood, as
------
purchaser (in such capacity, the "Purchaser"), GECC, as operating agent (in such
---------
capacity, the "Operating Agent") and collateral agent (in such capacity, the
---------------
"Collateral Agent") and Pameco, as servicer (in such capacity, the "Servicer")
---------------- --------
are parties to a Receivables Purchase and Servicing Agreement, dated as of April
29, 1996 (as heretofore amended, supplemented or otherwise modified, the
"Purchase Agreement");
------------------
WHEREAS, Redwood and GECC are parties to a Liquidity Loan Agreement,
dated as of April 29, 1996 (as heretofore amended, supplemented or otherwise
modified, the "Liquidity Agreement"; together with the Transfer Agreement and
-------------------
the Purchase Agreement, the "Securitization Agreements"); and
-------------------------
WHEREAS, the parties hereto desire to amend the Securitization
Agreements and certain ancillary documents and agreements referred to therein in
the manner set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. All capitalized terms used herein, unless
-----------
otherwise defined, are used as defined in the Purchase Agreement.
ARTICLE II
AMENDMENTS TO PURCHASE AGREEMENT AND ANNEX X
SECTION 2.1 Amendment to Annex X.
--------------------
(a) Annex X is hereby amended by deleting clause (f) of the
definition of "Eligible Receivable" and substituting therefor the following:
<PAGE>
"(f) which complies with such other criteria and requirements as
the Operating Agent, in its sole discretion, may from time to time
specify to the Seller or, if so required by either Rating Agency, upon
the number of days of notice specified by such Rating Agency."
SECTION 2.2 Amendment to Purchase Agreement.
(a) Section 2.03(a) of the Purchase Agreement is hereby amended by:
(i) deleting the words "the third" in the first sentence
thereof and substituting therefor the words "each"; and
(ii) inserting the words "by 11:30 a.m., New York City time,"
after the first reference to the term "Investment Base Certificate".
(b) Section 2.03(b) of the Purchase Agreement is hereby amended by
deleting the words "12:00 p.m." and substituting therefor the words "11:30
a.m.".
(c) Section 2.13 of the Purchase Agreement is hereby amended by:
(i) deleting the words "11:00 a.m." and substituting therefor
the words "12:00 p.m."; and
(ii) deleting the words "following the date of such Purchase
Excess" and substituting therefor the words "on which such Purchase
Excess occurs."
(d) Section 5.01 of the Purchase Agreement is hereby amended by
adding a new clause (j) as follows:
"(j) within 7 Business Days of the Amendment Effective Date,
have at least one of its Independent Directors (as defined in Seller's
certificate of incorporation) be a representative of any of Lord
Securities Corporation, Global Securitization Corporation or other
nationally-recognized independent firm acceptable to the Operating
Agent in its sole discretion."
(e) Section 5.02 of the Purchase Agreement is hereby amended by:
(i) Deleting the first sentence thereof and substituting
therefor the following:
"The Seller shall furnish, or cause to be furnished (in the case
of Section 5.02(j) only) to the Operating Agent, and in all other
cases to the Purchaser, the Operating Agent, the Collateral Agent and
(in the case of Section 5.02(f) only) the Rating Agencies:"
-2-
<PAGE>
(ii) Deleting Section 5.02(a) in its entirety and substituting
therefor the following:
"(a) on each Business Day, no later than 11:30 a.m., New York
City time, an Investment Base Certificate for the previous day's
activity in the forms attached hereto as Exhibit C-1, daily aging
-----------
reports of Receivables and a daily reconciliation of Receivables per
the daily aging report to the general ledger in the form attached
hereto as Exhibit C-2."
-----------
(iii) Adding a new clause (j) as follows:
"(j) on each Business Day, no later than 11:30 a.m., New York
City time, the Seller shall deliver to the Operating Agent a
certificate of the Seller in the form attached hereto as Exhibit E-1,
-----------
which certificate shall be true and accurate as of the date thereof."
(f) Section 9.01(a)(ii) of the Purchase Agreement is hereby amended
by deleting the word "five" contained in such section and substituting
therefor the word "two".
(g) Section 9.01 of the Purchase Agreement is hereby amended by
deleting the words "four days" contained in the proviso to the last
sentence in such section and substituting therefor the words "two
Business Days".
ARTICLE III
WAIVER
SECTION 3.1 Waiver. The Operating Agent, Redwood and the Collateral
------
Agent hereby waive the Termination Event and Event of Servicer Termination
arising under Sections 9.01(l) and 9.02(f) of the Purchase Agreement caused
solely by Pameco's failure to comply with the covenants set forth in Exhibit H
to the Purchase Agreement for the fiscal quarter ended August 31, 1999. The
foregoing waivers are limited to the specific purpose for which they are granted
and shall not be construed as a consent, waiver or other modification with
respect to any other term, condition or other provisions of any Related Document
or any other Termination Event and Event of Servicer Termination now or
hereafter existing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties of PSC and Pameco. Each
------------------------------------------------
of PSC and Pameco represents and warrants that:
(a) this Amendment No. 7 has been duly authorized, executed and
delivered by each such party which is a signatory thereto;
(b) this Amendment No. 7 constitutes the legal, valid and binding
obligation of each such party which is a signatory thereto; and
-3-
<PAGE>
(c) each of the representations and warranties of such party set
forth in the Securitization Agreements is true and correct as of the Amendment
Effective Date (as defined below) and on such Amendment Effective Date is also
made with respect to the Insurer; provided, that references in the
-------- ----
Securitization Agreements to the Purchase Agreement and to the Transfer
Agreement, shall be deemed references to the Purchase Agreement as amended by
this Amendment No. 7 and to the Transfer Agreement as amended by this Amendment
No. 7, respectively.
SECTION 4.2 Representations and Warranties of Redwood. Redwood
-----------------------------------------
represents and warrants that:
(a) this Amendment No. 7 has been duly authorized, executed and
delivered by Redwood;
(b) this Amendment No. 7 constitutes the legal, valid and binding
obligation of Redwood; and
(c) each of the representations and warranties of Redwood set forth
in the Securitization Agreements is true and correct as of the Amendment
Effective Date (as defined below); provided, that references in the
-------- ----
Securitization Agreements to the Purchase Agreement and to the Transfer
Agreement, shall be deemed references to the Purchase Agreement as amended by
this Amendment No. 7 and to the Transfer Agreement as amended by this Amendment
No. 7, respectively.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1 Conditions Precedent. This Amendment No. 7 shall
--------------------
become effective (the actual date of such effectiveness, the "Amendment
---------
Effective Date") as of the date first above written subject to satisfaction of
- --------------
the following conditions precedent in form and substance satisfactory to the
Operating Agent:
(a) Counterparts hereof shall have been duly executed and delivered
by the parties hereto;
(b) the Operating Agent shall have received a certificate of the
Secretary or an Assistant Secretary of each of the Seller and the Servicer,
dated as of the Amendment Effective Date, and certifying (i) the names and true
signatures of the officers authorized on its behalf to sign this Amendment No.
7, (ii) a copy of such party's certificate of incorporation and by-laws, and
(iii) a copy of the resolutions of the board of directors of such party
approving this Amendment No. 7 and the related transactions to which it is a
party, all in form and substance satisfactory to the Operating Agent. Such
certificate shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded as of the date of such certificate;
(c) the Operating Agent shall have received an Officer's Certificate
from each of the Seller and the Servicer in the forms of Annexes A-1 and A-2
hereto, respectively;
-4-
<PAGE>
(d) PSC shall have received a certificate of the Secretary or an
Assistant Secretary of the Originator, dated as of the Amendment Effective Date,
and certifying (i) the names and true signatures of the officers authorized on
its behalf to sign this Amendment No. 7, (ii) a copy of the Originator's
certificate of incorporation and by-laws, and (iii) a copy of the resolutions of
the board of directors of the Originator approving this Amendment No. 7 and the
related transactions to which it is a party. Such certificate shall state that
the resolutions thereby certified have not been amended, modified, revoked or
rescinded as of the date of such certificate;
(e) An initial Investment Base Certificate in the form of
Exhibit C-1, dated the Amendment Effective Date, shall have been duly executed
- -----------
and delivered by PSC;
(f) A certificate of PSC, dated the Amendment Effective Date, in the
form of Exhibit E-1 hereto shall have been duly executed and delivered by PSC;
-----------
(g) The Operating Agent shall have received an executed reaffirmation
opinion from Kilpatrick Stockton LLP with respect to true sale and non-
consolidation matters in form and substance satisfactory to the Operating Agent;
and
(h) PSC and Pameco shall have taken such other actions and provided
such documentation as the Operating Agent may request.
ARTICLE VI
WAIVER BY PSC AND SERVICER
Each of PSC and the Servicer hereby waives any claim, defense, demand,
action or suit of any kind or nature whatsoever against the Insurer, the
Purchaser, the Letter of Credit Providers, the Liquidity Lenders, the Liquidity
Agent, the Operating Agent and the Collateral Agent arising on or prior to the
date hereof in connection with the Purchase Agreement or the transactions
contemplated thereunder.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. This Amendment No. 7 may be executed on
------------
any number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
SECTION 7.2 GOVERNING LAW. THIS AMENDMENT NO. 7 SHALL BE GOVERNED
-------------
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
SECTION 7.3 Expenses. Pameco agrees to pay and reimburse the
--------
Operating Agent for all of its out-of-pocket costs and expenses incurred in
connection with the negotiation, preparation, execution, and delivery of this
Amendment No. 7, including the reasonable fees and expenses of counsel to the
Operating Agent and the Collateral Agent.
[signature page follows]
-5-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
7 to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
PAMECO SECURITIZATION CORPORATION
By ________________________
Title:
REDWOOD RECEIVABLES CORPORATION
By _______________________
Title:
PAMECO CORPORATION
By _______________________
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Operating Agent and
Collateral Agent
By _______________________
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Liquidity Agent
By _______________________
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Letter of Credit Agent and
Letter of Credit Provider
By _______________________
Title:
-6-
<PAGE>
ANNEX A-1
FORM OF OFFICER'S CERTIFICATE OF SELLER
---------------------------------------
Pameco Securitization Corporation
Officer's Certificate
I, [Name of Officer], the duly elected [Insert Title] of Pameco
Securitization Corporation (the "Seller"), hereby certify pursuant to Section
5.1(c) of Amendment No. 7 to Securitization Agreements, dated as of the date
hereof ("Amendment No. 7"; capitalized terms used but not defined in this
Officer's Certificate having the meaning set forth in Amendment No. 7), between
the Seller, Pameco Corporation, Redwood Receivables Corporation (the
"Purchaser") and General Electric Capital Corporation, and for the benefit of
the Purchaser, the Operating Agent and General Electric Capital Corporation, as
follows:
(1) after giving effect to the effectiveness of Amendment No. 7, no
Termination Event or Incipient Event will have occurred and be continuing; and
(2) the representations and warranties of the Seller contained in
Section 4.01 of the Purchase Agreement, in the Transfer Agreement and in any
other document, certificate or financial or other statement delivered by the
Seller in connection with the Purchase Agreement or the Transfer Agreement are
true and correct in all material respects and with the same force and effect as
though such representations and warranties had been made as of such date, except
to the extent any such representations and warranties relate solely to an
earlier date.
IN WITNESS WHEREOF, I have signed and delivered this Officer's
Certificate this ___ day of October, 1999.
PAMECO SECURITIZATION CORPORATION
By:_________________________
Name:
Title:
-7-
<PAGE>
ANNEX A-2
FORM OF OFFICER'S CERTIFICATE OF SERVICER
-----------------------------------------
Pameco Corporation
Officer's Certificate
I, [Name of Officer], the duly elected [Insert Title] of Pameco
Corporation (the "Servicer"), hereby certify pursuant to Section 5.1(c) of
Amendment No. 7 to Securitization Agreements, dated as of the date hereof
("Amendment No. 7"; capitalized terms used but not defined in this Officer's
Certificate having the meaning set forth in Amendment No. 7), between Pameco
Securitization Corporation, the Servicer, Redwood Receivables Corporation (the
"Purchaser") and General Electric Capital Corporation, and for the benefit of
the Purchaser, the Operating Agent and General Electric Capital Corporation, as
follows:
(1) after giving effect to the effectiveness of Amendment No. 7, no
Termination Event or Incipient Event will have occurred and be continuing; and
(2) the representations and warranties of the Seller contained in
Section 4.01 of the Purchase Agreement, in the Transfer Agreement and in any
other document, certificate or financial or other statement delivered by the
Seller in connection with the Purchase Agreement or the Transfer Agreement are
true and correct in all material respects and with the same force and effect as
though such representations and warranties had been made as of such date, except
to the extent any such representations and warranties relate solely to an
earlier date.
IN WITNESS WHEREOF, I have signed and delivered this Officer's
Certificate this ___ day of October, 1999.
PAMECO CORPORATION
By:_________________________
Name:
Title:
-8-
<PAGE>
Exhibit E-1
DAILY COMPLIANCE CERTIFICATE
General Electric Capital Corporation,
as Operating Agent
201 High Ridge Road
Stamford, CT 06927
Attn: Craig Winslow
Ladies and Gentlemen:
This certificate is given pursuant to the Receivables Purchase and
Servicing Agreement dated May 1, 1996, as amended (the "Purchase Agreement"), by
and among Pameco Securitization Corporation (the "Seller"), Redwood Receivables
Corporation (the "Purchaser"), Pameco Corporation (the "Servicer") and General
Electric Capital Corporation, as operating agent for the Purchaser (in such
capacity, the "Operating Agent") and as collateral agent for the Purchaser and
the Purchaser Secured Parties (in such capacity, the "Collateral Agent").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to them in the Purchase Agreement.
The undersigned hereby certify and represent that the following statements
are true and correct on the date hereof:
(i) All representations and warranties made by the Seller, the Servicer,
and the Originator contained in the Purchase Agreement or otherwise
made in any Related Document, officer's certificate or any agreement,
instrument, certificate, document, Investment Base Certificate, or
other writing delivered to the Purchaser, the Operating Agent or the
Collateral Agent in connection therewith, are true and correct as of
the date hereof, with the same effect as though made on and as of the
date hereof (unless such representation and warranty speaks as of a
particular date, in which case it is true and correct as of such
date);
(ii) Neither the Seller, the Servicer nor the Originator has breached or
failed to comply with any of its covenants set forth in the Purchase
Agreement or the Transfer Agreement; and
(iii) No Termination Event or Incipient Event has occurred and is
continuing.
Very truly yours,
PAMECO SECURITIZATION CORPORATION,
as Seller
By:______________________________
Name:____________________________
Date:____________________________
<PAGE>
Exhibit I
DAILY COMPLIANCE CERTIFICATE
General Electric Capital Corporation,
as Agent
201 High Ridge Road
Stamford, CT 06927
Attn: Craig Winslow
Ladies and Gentlemen:
This certificate is given pursuant to the Amended and Restated Credit
Agreement dated March 10, 1998, as amended (the "Credit Agreement"), by and
among Pameco Corporation (the "Borrower"), and General Electric Capital
Corporation, as agent for the Lenders (in such capacity, the "Agent").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to them in the Credit Agreement.
The undersigned hereby certify and represent that the following statements
are true and correct on the date hereof:
(i) All representations and warranties made by the Borrower contained in
the Credit Agreement, officer's certificate or any agreement,
instrument, certificate, document, Borrowing Base Certificate, or
other writing delivered to the Agent in connection therewith, are
true and correct as of the date hereof, with the same effect as
though made on and as of the date hereof (unless such representation
and warranty speaks as of a particular date, in which case it is true
and correct as of such date);
(ii) The Borrower has not breached or failed to comply with any of its
covenants set forth in the Credit Agreement; and
(iii) No Event of Default has occurred and is continuing.
Very truly yours,
PAMECO CORPORATION, as Borrower
By:________________________________
Name:______________________________
Date:______________________________
