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EXHIBIT 10.44
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
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THIS FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment") is
made and entered into this ____ day of December, 2000, by and among PAMECO
CORPORATION, a Delaware corporation with its chief executive office and
principal place of business at 651 Corporate Circle, Suite 200, Golden, Colorado
80401 ("Borrower"); and FLEET CAPITAL CORPORATION, a Rhode Island corporation
with an office at 300 Galleria Parkway, N.W., Suite 800, Atlanta, Georgia 30339
("Agent"), in its capacity as collateral and administrative agent for the
Lenders (as defined in the Loan Agreement referenced below); and Lenders.
Recitals:
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Lenders, Agent and Borrower are parties to a certain Loan and Security
Agreement dated February 17, 2000, as amended by that certain First Amendment to
Loan and Security Agreement dated February 29, 2000, that certain Second
Amendment to Loan and Security Agreement dated May 18, 2000, that certain
Assumption and Amendment Agreement dated as of July 21, 2000, and that certain
Fourth Amendment to Loan and Security Agreement dated as of August 23, 2000 (as
at any time amended, the "Loan Agreement"), pursuant to which Lenders may make
certain loans and other extensions of credit to Borrower from time to time.
The parties desire to amend the Loan Agreement as hereinafter set forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good and
valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Definitions. All capitalized terms used in this Amendment, unless
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otherwise defined herein, shall have the meaning ascribed to such terms in the
Loan Agreement.
2. Amendments to Loan Agreement. The Loan Agreement is hereby amended as
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follows:
(a) By deleting Section 4.2.2 of the Loan Agreement and by substituting the
following new Section 4.2.2 in lieu thereof:
4.2.2. Payment of Interest. Interest accrued on the Revolver Loans
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shall be due and payable on (i) the first calendar day of each month (for
the immediately preceding month), computed through the last calendar day of
the preceding month, with respect to any Revolver Loan (whether a Base Rate
Loan or a LIBOR Loan) and (ii) the last day of the applicable Interest
Period in the case of a LIBOR Loan.
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Accrued interest shall also be paid by Borrower on the Commitment
Termination Date. With respect to any Base Rate Loan converted into a LIBOR
Loan pursuant to Section 2.1.2 on a day when interest would not otherwise
have been payable with respect to such Base Rate Loan, accrued interest to
the date of such conversion on the amount of such Base Rate Loan so
converted shall be paid on the conversion date.
(b) By deleting Section 9.3.2 of the Loan Agreement and by substituting
the following new Section 9.3.2 in lieu thereof:
9.3.2. Consolidated EBITDA. Achieve Consolidated EBITDA of at
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least the amount shown below for the period corresponding thereto:
Period Amount
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November 1, 2000
through November 30, 2000 ($ 5,200,000)
November 1, 2000
through December 31, 2000 ($ 9,700,000)
November 1, 2000
through January 31, 2001 ($13,400,000)
November 1, 2000
through February 28, 2001 ($17,700,000)
November 1, 2000
through March 31, 2001 ($19,600,000)
November 1, 2000
through April 30, 2001 ($19,700,000)
November 1, 2000
through May 31, 2001 ($17,300,000)
November 1, 2000
through June 30, 2001 ($13,400,000)
November 1, 2000
through July 31, 2001 ($ 8,200,000)
November 1, 2000
through August 31, 2001 ($ 3,600,000)
November 1, 2000
through September 30, 2001 ($ 1,800,000)
November 1, 2000
through October 31, 2001 $ 300,000
December 1, 2000
through November 30, 2001 $ 4,800,000
January 1, 2001
through December 31, 2001 $ 7,700,000
February 1, 2001
through January 31, 2002 $10,000,000
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March 1, 2001
through February 28, 2002 $ 12,700,000
(c) By deleting Borrower's address set forth below the signature of
Borrower on the signature page of the Loan Agreement and in the preamble and by
substituting the following new address in lieu thereof:
Address:
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615 Corporate Circle, Suite 200
Golden, Colorado 80401
Attention: President
Telecopier No.: (303) 568-1200
(d) By deleting the definition of "Interim Period Reserve Amount" in
Appendix A to the Loan Agreement and by substituting in lieu thereof the
following new definition:
Interim Period Reserve Amount -(i) $3,000,000 for each month during
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the period from August 1, 2000 through April 30, 2001, (ii) $5,000,000 for
each month during the period from May 1, 2001 through June 30, 2001, and
(iii) $3,000,000 for each month during the period from July 1, 2001 through
October 31, 2001.
3. Ratification and Reaffirmation. Borrower hereby ratifies and
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reaffirms the obligations, each of the Loan Documents and all of Borrower's
covenants, duties, indebtedness and liabilities under the Loan Documents.
4. Acknowledgments and Stipulations. Borrower acknowledges and
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stipulates that the Loan Agreement and the other Loan Documents executed by
Borrower are legal, valid and binding obligations of Borrower that are
enforceable against Borrower in accordance with the terms thereof; all of the
Obligations are owing and payable without defense, offset or counterclaim (and
to the extent there exists any such defense, offset or counterclaim on the date
hereof, the same is hereby waived by Borrower); and the security interests and
Liens granted by Borrower in favor of Agent, for the benefit of itself and
Lenders, are duly perfected, first priority security interests and Liens.
5. Representations and Warranties. Borrower represents and warrants to
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Agent and Lenders, to induce Agent and Lenders to enter into this Amendment,
that no Default or Event of Default exists on the date hereof; the execution,
delivery and performance of this Amendment have been duly authorized by all
requisite corporate action on the part of Borrower and this Amendment has been
duly executed and delivered by Borrower; and all of the representations and
warranties made by Borrower in the Loan Agreement are true and correct on and as
of the date hereof.
6. Breach of Amendment. This Amendment shall be part of the Loan
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Agreement and a breach of any representation, warranty or covenant herein shall
constitute an Event of Default.
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7. Expenses of Agent. Borrower agrees to pay, on demand, all reasonable
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costs and expenses incurred by Agent in connection with the preparation,
negotiation and execution of this Amendment and any other Loan Documents
executed pursuant hereto and any and all amendments, modifications, and
supplements thereto, including, without limitation, the reasonable costs and
fees of Agent's legal counsel and any taxes or expenses associated with or
incurred in connection with any instrument or agreement referred to herein or
contemplated hereby.
8. Conditions Precedent. The effectiveness of the amendments contained
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in Section 2 hereof are subject to the satisfaction of each of the following
conditions precedent, in form and substance satisfactory to Agent and Lenders,
unless satisfaction thereof is specifically waived in writing by Agent and
Lenders:
(a) Littlejohn and Quilvest shall have made an additional capital
contribution to Borrower of at least $12,500,000 in the aggregate in exchange
for shares of preferred stock of Borrower, and the proceeds of such capital
contribution shall have been applied to the outstanding balance of the Revolver
Loans;
(b) Borrower, Guarantor and each Lender shall have delivered to Agent an
executed original of this Amendment; and
(c) Borrower shall have paid to Agent the amendment fee set forth in
Section 9 hereof.
9. Amendment Fee. In consideration of Agent's and Lenders' willingness
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to enter into this Amendment, Borrower agrees to pay to Agent, for the Pro Rata
benefit of Lenders, an amendment fee of $160,000, in immediately available funds
on the date hereof.
10. Effectiveness; Governing Law. This Amendment shall be effective upon
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execution by Borrower and acceptance by Agent and Lenders (notice of which
acceptance is hereby waived), whereupon the same shall be governed by and
construed in accordance with the internal laws of the State of Georgia.
11. Successors and Assigns. This Amendment shall be binding upon and
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inure to the benefit of the parties hereto and their respective successors and
assigns.
12. No Novation, etc.. Except as otherwise expressly provided in this
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Amendment, nothing herein shall be deemed to amend or modify any provision of
the Loan Agreement or any of the other Loan Documents, each of which shall
remain in full force and effect. This Amendment is not intended to be, nor
shall it be construed to create, a novation or accord and satisfaction, and the
Loan Agreement as herein modified shall continue in full force and effect.
13. Counterparts; Telecopied Signatures. This Amendment may be executed
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in any number of counterparts and by different parties to this Amendment on
separate counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute
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one and the same agreement. Any signature delivered by a party by facsimile
transmission shall be deemed to be an original signature hereto.
14. Further Assurances. Borrower agrees to take such further actions as
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Agent shall reasonably request from time to time in connection herewith to
evidence or give effect to the amendments set forth herein or any of the
transactions contemplated hereby in accordance with the terms and conditions of
the Loan Documents.
15. Section Titles. Section titles and references used in this Amendment
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shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreements among the parties hereto.
16. Waiver of Jury Trial. To the fullest extent permitted by Applicable
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Law, the parties hereto each hereby waives the right to trial by jury in any
action, suit, counterclaim or proceeding arising out of or related to this
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal in Atlanta, Georgia, and delivered by their respective
duly authorized officers on the date first written above.
ATTEST: PAMECO CORPORATION
__________________________ By: __________________________
Name: ____________________ Name:_____________________
Title:____________________ Title:____________________
FLEET CAPITAL CORPORATION, as
Agent
By: __________________________
Title: ___________________
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FLEET CAPITAL CORPORATION,
as a Lender
By: __________________________________
Title:____________________________
FOOTHILL CAPITAL CORPORATION,
as a Lender
By: __________________________________
Title:____________________________
THE CIT GROUP/BUSINESS CREDIT,
INC., as a Lender
By: __________________________________
Title:____________________________
BANK OF AMERICA, N.A., as a Lender
By: __________________________________
Title:____________________________
WACHOVIA BANK, N.A., as a Lender
By: __________________________________
Title:____________________________
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CONSENT AND REAFFIRMATION
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Each of the undersigned guarantors of the Obligations of Borrower at any
time owing to Agent and Lenders hereby: (i) acknowledges receipt of a copy of
the foregoing Fifth Amendment to Loan and Security Agreement; (ii) consents to
Borrower's execution and delivery thereof and of the other documents,
instruments or agreements Borrower agrees to execute and deliver pursuant
thereto; (iii) agrees to be bound thereby; and (iv) affirms that nothing
contained therein shall modify in any respect whatsoever its guaranty of the
Obligations and reaffirms that such guaranty is and shall remain in full force
and effect.
IN WITNESS WHEREOF, each of the undersigned has executed this Consent and
Reaffirmation on the date of such Fifth Amendment to Loan and Security
Agreement.
PAMECO INVESTMENT COMPANY, INC.
By:___________________________________
Title:__________________________
Attest:_____________________________
Title:__________________________
[CORPORATE SEAL]
LITTLEJOHN FUND II, L.P.
By: Littlejohn Associates II, L.L.C.,
its General Partner
By:_____________________________
Title:_______________________
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CONSENT AND REAFFIRMATION
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Each of the undersigned guarantors of the Obligations of Borrower at any
time owing to Agent and Lenders hereby: (i) acknowledges receipt of a copy of
the foregoing Fifth Amendment to Loan and Security Agreement; (ii) consents to
Borrower's execution and delivery thereof and of the other documents,
instruments or agreements Borrower agrees to execute and deliver pursuant
thereto; (iii) agrees to be bound thereby; and (iv) affirms that nothing
contained therein shall modify in any respect whatsoever its guaranty of the
Obligations and reaffirms that such guaranty is and shall remain in full force
and effect.
IN WITNESS WHEREOF, each of the undersigned has executed this Consent and
Reaffirmation on the date of such Fifth Amendment to Loan and Security
Agreement.
PAMECO INVESTMENT COMPANY, INC.
By:____________________________________
Title:______________________________
Attest:________________________________
Title:__________________________
[CORPORATE SEAL]
LITTLEJOHN FUND II, L.P.
By: Littlejohn Associates II, L.L.C.,
its General Partner
By:________________________________
Title:____________________________
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