Exhibit 10.14I
SEVENTH AMENDMENT AND WAIVER
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SEVENTH AMENDMENT AND WAIVER (this "Amendment"), dated as of October
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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
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"Company"), the lenders parties thereto (together with their respective
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successors and permitted assigns, the "Lenders") and GENERAL ELECTRIC CAPITAL
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CORPORATION, a New York corporation, as agent for the Lenders (in such capacity,
together with its successors and permitted assigns, the "Agent").
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W I T N E S S E T H :
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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
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herein with the meanings set forth in the Credit Agreement unless otherwise
defined herein.
2. Amendment of Credit Agreement.
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(a) Amendment of Section 1.1. Section 1.1 is hereby amended by:
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(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
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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
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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):
"Daily Borrowing Base Certificate" shall mean a certificate
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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
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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
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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
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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
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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.
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(c) Amendment of Section 11. Section 11 is hereby amended by deleting
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paragraph (e) in its entirety and substituting therefor the following:
(e) Other Covenants. (i) Default by any Loan Party in the
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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
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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,
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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
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effective (the actual date of such effectiveness, the "Seventh Amendment
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Effective Date") as of the date first above written when:
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(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
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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
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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;
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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
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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
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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
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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
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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
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CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
[signature page follows]
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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: ______________________
ACKNOWLEDGMENT AND CONSENT
ACKNOWLEDGMENT AND CONSENT (this "Acknowledgment and Consent"), dated
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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
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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
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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
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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
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Credit Agreement"); and
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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
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Restated Credit Agreement as amended by the Amendment, the "Amended Agreement");
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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
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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
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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:
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(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.
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(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]
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: ___________________________
Schedule 1 to
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Acknowledgment and Consent
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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
