EXHIBIT 10.14J
Note: an "*" indicates information for which the Company has requested
from the Securities and Exchange Commission confidential treatment
EIGHTH AMENDMENT, CONSENT AND WAIVER
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EIGHTH AMENDMENT, CONSENT AND WAIVER (this "Amendment"), dated as of
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December 30, 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, give certain consents and grant certain waivers
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,
consents and waivers and 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.
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(i) Section 1.1 is hereby amended by restating the following
definitions in their entirety:
"Borrowing Base" shall mean, at any date, the amount equal to the
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lesser of (a) $60,000,000 and (b) 50% of Eligible Inventory, less
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Reserves in effect from time to time; provided, however, that in no
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event shall the sum of the Revolving Credit Loans, the Swingline Loans
and the Reimbursement Obligations (without duplication of the
Reimbursement Obligations deemed to have become Loans) exceed the
Borrowing Base. The Agent, at any and all times, shall be entitled to
change any and all of the percentages used in determining the
Borrowing Base at any time in its reasonable discretion with the
consent of the Majority Facility Lenders.
"Loan Documents" shall mean this Agreement, the Notes, the
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Syndication Letter Agreement, the Intercreditor Agreement, the Global
Amendment, the Warrants, the Subordination Agreement and the
Collateral Documents.
"Revolving Credit Commitment" shall mean, as to any Lender, the
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obligation of such Lender, if any, to make Revolving Credit Loans to
the Company, to purchase participating interests in Swingline Loans
and to incur Letter of Credit Obligations hereunder, in an aggregate
amount not to exceed the amount set forth opposite such Lender's name
on Schedule 1 to this Eighth Amendment, as the same may be reduced
from time to time pursuant to the terms hereof; collectively, as to
all Revolving Credit Lenders, the "Revolving Credit Commitments".
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(ii) Section 1.1 is hereby amended by inserting the following
new defined terms in alphabetical order:
"Eighth Amendment to Credit Agreement" shall mean that certain
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Eighth Amendment, Consent and Waiver dated as of December 30, 1999 to
this Agreement. The terms "First Borrowing Conditions", "Extension
Conditions", "Quilvest", "Preferred Stock Purchase", "Subordinated
Debt Issuance", and "Refinancing" as used herein shall have the
meanings set forth in the Eighth Amendment to Credit Agreement.
"Subordination Agreement" shall mean that certain Subordination
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and Intercreditor Agreement dated as of December 30, 1999 by and among
Agent, the Company and Quilvest American Equity LTD ("Quilvest"), as
amended, restated or supplemented from time to time."
(iii) Section 1.1 is hereby amended by deleting the defined term
"Tranche A Term Loan Maturity Date" in its entirety and substituting therefor
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the following:
"Tranche C Term Loan Maturity Date" shall mean February 29, 2000.
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(b) Amendment of Section 2.1. Section 2.1 is hereby amended by
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deleting it in its entirety and substituting therefor the following:
2.1 Term Loan Commitments. Subject to the terms and conditions
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hereof, (a) each Tranche C Term Loan Lender severally agrees to make
term loans (each, a "Tranche C Term Loan") to the Company from January
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1, 2000 to February 29, 2000 on up to two Borrowing Dates in an
aggregate principal amount not to exceed the amount of the Tranche C
Term Loan Commitment of such Lender set forth on Schedule 1 to this
Eighth Amendment, with the aggregate principal amount of all such term
loans not to exceed $17,500,000, and (b) each Tranche B Term Loan
Lender severally has made term loans (each, a "Tranche B Term Loan")
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to the Company on the Effective Date in an aggregate principal amount
not to exceed the amount of the Tranche B Term Loan Commitment of such
Lender. The Tranche B Term Loans may from time to time be Eurodollar
Loans or Index Rate Loans, as determined by the Company and notified
to the Agent in accordance with subsections 2.3 and 6.4. The Tranche
C Term Loans shall be Index Rate Loans. The Tranche C Term Loan
Commitments shall expire on February 29, 2000. Until January 31,
2000, the outstanding aggregate principal
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amount of Tranche C Term Loans shall not exceed $7,500,000. Principal
payments made on Tranche C Term Loans may not be reborrowed.
(c) Amendment of Section 2.3. Section 2.3 is hereby amended by
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renumbering existing Section 2.3 as "Section 2.3A" and creating a new Section
2.3B as follows (with the effect that Sections 2.3A and 2.3B shall collectively
be considered Section 2.3):
2.3B Procedure for Tranche C Term Loan Borrowing. The Company shall
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give the Agent irrevocable written notice (which notice must be
received by the Agent prior to 12:00 Noon, New York City time, one
Business Day prior to the proposed Borrowing Date in the form of
Exhibit A to this Amendment), specifying the amount of Tranche C Term
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Loans to be borrowed. Upon receipt of any such notice from the
Company, the Agent shall promptly notify each Tranche C Term Loan
Lender thereof. Each Tranche C Term Loan Lender will make the amount
of its pro rata share of each borrowing available to the Agent for the
account of the Company prior to 12:00 Noon, New York City time, on the
Borrowing Date at the Agent's depositary bank as designated by the
Agent from time to time for deposit in the Agent's depositary account,
in immediately available funds. The Company may borrow under the
Tranche C Term Loan one time during each of the following periods: (i)
from and including January 1, 2000 to and including January 31, 2000
(the "First Tranche C Borrowing"); and (ii) from and including
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February 1, 2000 to and including February 28, 2000 (the "Final
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Tranche C Borrowing"). In addition to the other conditions set forth
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in this Agreement, each Tranche C Term Loan Lenders' obligation to
make the First Tranche C Borrowing and the Final Tranche C Borrowing
shall be conditioned upon the satisfaction of the First Borrowing
Conditions and the Extension Conditions, as applicable.
(d) Amendment of Section 2.4(a). Section 2.4(a) is hereby amended
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by deleting it in its entirety and substituting therefor the following:
2.4 Repayment of Term Loans. (a) The Tranche C Term Loan of each
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Tranche C Term Loan Lender shall mature, and the Company
unconditionally promises to pay such Tranche C Term Loan to the Agent
for the account of such Tranche C Term Loan Lender, in one installment
on February 29, 2000, which shall be in an amount equal to such
Lender's Tranche C Term Loan Percentage multiplied by the outstanding
principal amount of the Tranche C Term Loan.
(e) Amendment of Section 3.1. Section 3.1 is hereby amended by
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deleting the reference to "$90,000,000" contained therein and
substituting therefor "$60,000,000".
(f) Amendment of Section 6.1(e). Section 6.1(e) is hereby amended
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by deleting it in its entirety and substituting therefor the following:
(e) If after the Eighth Amendment Effective Date any Indebtedness
(other than Indebtedness incurred pursuant to the terms of this
Agreement, the Quilvest Loan, or the Capital Investment) shall be
issued or incurred by the Company or any of its Subsidiaries or the
Company or any of
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its Subsidiaries shall issue equity, an amount equal to 100% of such
Net Cash Proceeds thereof shall be, within one Business Day after the
date of such issuance or incurrence, applied first, to interest and
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fees then due and payable and principal payments on the Tranche C Term
Loan, second, to interest and fees then due and payable and principal
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payments on the Tranche B Term Loan, third, in accordance with Section
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6.16 and fourth, to reduce the Capital Investment until paid in full.
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The proceeds of the Quilvest Loan will be applied to reduce the amount
of then outstanding Revolving Credit Loans; provided, however, that
such reduction in the Revolving Credit Loans shall not reduce the
Revolving Credit Commitments other than as provided in the Eighth
Amendment to Credit Agreement.
(g) Amendment of Section 6.3(b). Section 6.3(b) is hereby amended
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by deleting it in its entirety and substituting therefor the following:
(b) Each Term Loan that is an Index Rate Loan (other than a Tranche
C Term Loan) shall bear interest at a rate per annum equal to the
Index Rate plus the Applicable Margin; provided that outstanding
Tranche C Term Loans shall bear interest at a rate per annum equal to
the Index Rate plus 5.00%.
(h) Amendment of Section 7. Section 7 is hereby amended by adding
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new Sections 7.26 and 7.27 as follows:
7.26 Refinancing. (i) The senior debt provider has not indicated to
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the Company or * that it will no longer pursue the Refinancing, (ii) *
and Quilvest have not indicated that they will no longer pursue the
Preferred Stock Sale (as defined below) and (iii) the vendors have not
indicated that they will no longer pursue the Subordinated Debt
Issuance.
7.27 Vendor Payments. From the date of the First Tranche C
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Borrowing, in the aggregate, payments to vendors do not exceed the
amount of purchases of new Inventory on equal or better payment terms.
(i) Amendment of Section 10. Section 10 is hereby amended by adding
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a new Section 10.18 as follows:
10.18 Receipt of Amounts. The Company shall not use any amounts
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received under the Tranche C Term Loan other than to pay outstanding
Revolving Credit Loans in accordance with Section 6.16.
(j) Amendment of Section 11. New Sections 11(m) and (n) are hereby
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added as follows with the remaining Sections relettered accordingly:
(m) The sum of the principal balance of (i) the Capital
Investment and (ii) the Obligations shall exceed at any time (x)
$110,000,000 for the period beginning on the Eighth Amendment
Effective Date to and including December 31, 1999 and (y) $112,500,000
for the period beginning on January 1, 2000 and thereafter; or
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(n) Any of the Extension Conditions shall not have occurred on or
before January 31, 2000.
(k) Except as specifically amended by this Amendment, all references
contained in the Credit Agreement and the other Loan Documents to the terms
"Tranche A Term Loan", "Tranche A Term Loan Commitment", "Tranche A Term Loan
Lender", "Tranche A Term Loan Maturity Date", "Tranche A Term Loan Percentage",
"Tranche A Term Note" are hereby replaced with the terms, respectively, "Tranche
C Term Loan", "Tranche C Term Loan Commitment", "Tranche C Term Loan Lender",
"Tranche C Term Loan Maturity Date", "Tranche C Term Loan Percentage", "Tranche
C Term Note" and the Credit Agreement and the other Loan Documents shall be
deemed amended in the Agent's determination with respect to grammatical,
punctuation and other non-substantive changes necessary to give effect to the
substitution of such terms without affecting the interpretation of the remaining
provisions thereof.
(l) Amendment of Schedule 10.8. Section (a) to Schedule 10.8 to the
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Credit Agreement is hereby deleted in its entirety and replaced with the
following.
(a) Company EBITDA. As of the last day of each fiscal period of the
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Company, the Consolidated EBITDA for the preceding twelve consecutive fiscal
months shall not be less than the amount set forth below opposite such period:
Fiscal Quarter Ending Amount
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November 30, 1999 $(800,000)
February 29, 2000 $17,246,000
For each fiscal quarter thereafter $20,000,000
Fiscal Month Ending Amount
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December 31, 1999 $(9,000,000)
January 31, 2000 $(14,500,000)
In calculating Consolidated EBITDA for the periods set forth above, adjustments
to the Consolidated EBITDA may be made for non cash items; provided, however,
that such adjustments shall be reviewed by, and satisfactory to, the Agent, and
may only be made upon the written consent of the Agent to such non cash
adjustments. If any adjustments proposed by the Company are not satisfactory to
the Agent, the parties agree to negotiate in good faith to resolve any
differences.
3A. Conditions to Any Tranche C Borrowing. The Tranche C Term Loan
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Lenders shall not be required to make any Tranche C Term Loan unless the
following conditions (the "First Borrowing Conditions") have been satisfied and
the Company has furnished to the Agent, all in form and substance satisfactory
to the Agent:
(a) Agent shall have received an appraisal of the Inventory of the
Company from MB Valuations, in form and substance acceptable to the Agent and
Lenders.
(b) Agent shall have received (i) a proposal letter, delivered
pursuant to a confidentiality agreement between *, and Agent, for a fully
underwritten
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senior debt commitment from a senior secured lender which contains terms and
conditions satisfactory to the Agent and (ii) a letter from *, to the effect
that it has received written proposals satisfactory to * from junior
subordinated investors on terms which, when aggregated with the net cash
proceeds from the Preferred Stock Sale (as defined below), would yield expected
proceeds sufficient to refinance the Obligations under the Credit Agreement, the
Capital Investment under the Receivables Purchase Agreement and any other
accrued and unpaid fees, interest and expenses in full (the "Refinancing").
(c) Quilvest shall have satisfied all conditions set forth in the
Subordination Agreement, including but not limited to the delivery to Agent of
UCC termination statements and other collateral releases.
(d) The Agent, for the benefit of the Tranche C Term Loan Lenders,
shall have received a fee of $150,000. This fee is in addition to the upfront
fee required by Section 3C(f) of this Eighth Amendment to Credit Agreement.
(e) The Agent shall have received an opinion of the Company's counsel
with respect to corporate existence, due authorization, execution and delivery,
enforceability and no conflict with law in form and substance satisfactory to
the Agent.
3B. Conditions to Final Tranche C Borrowing. The Tranche C Term Loan
---------------------------------------
Lenders shall not be required to make any Tranche C Term Loan on or after
February 1, 2000 unless, on or before such date, the following conditions (the
"Extension Conditions") have been satisfied and the Company has furnished to the
Agent, all in form and substance satisfactory to the Agent:
(a) An escrow account shall have been funded with not less than
$20,000,000 in cash for the purpose of the purchase of preferred stock of the
Company by * and Quilvest all on terms and conditions
satisfactory to the Agent and Lenders (the "Preferred Stock Sale");
(b) The Company shall have received net cash proceeds, or * and the
Company shall have represented in writing that the Company has received
commitments to receive net cash proceeds by February 29, 2000, of at least
$25,000,000 in subordinated debt (other than the Quilvest Loan) on terms and
conditions acceptable to * and the new senior debt provider; and
(c) The Company has delivered to the Agent written evidence of a
fully underwritten unconditional senior debt commitment evidencing expected
proceeds sufficient, when aggregated with the net cash proceeds from the
Preferred Stock Sale and the Subordinated Debt Issuance, to consummate the
Refinancing.
3C. Conditions to Effectiveness of Amendment. This Amendment shall
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become effective (the actual date of such effectiveness, the "Eighth 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.
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(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 Eighth Amendment
Effective Date, and certifying (i) as to the due authorization, execution,
delivery and performance of this Amendment, the Acknowledgment and Consent
attached hereto and related matters, 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
Eighth Amendment Effective Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of such Loan Party.
(e) The Agent shall have received an opinion of the Company's counsel
with respect to corporate existence, due authorization, execution and delivery,
enforceability and no conflict with law in form and substance satisfactory to
the Agent.
(f) The Agent, for the benefit of the Tranche C Term Loan Lenders,
shall have received an upfront fee of $100,000.
(g) The Agent shall have received copies, attached to a certificate
from the Secretary or Assistant Secretary of the Company, certifying as true and
correct (i) the loan agreement entered into between Quilvest and the Company
(the "Quilvest Loan Agreement") which shall contain provisions which grant to
Quilvest a security interest in the Collateral (other than the Seller Collateral
(as defined in the Receivables Purchase Agreement)) and otherwise be in form and
substance acceptable to the Agent and Lenders, (ii) any UCC financing statements
to be executed by the Company in favor of Quilvest, (iii) the Subordination
Agreement and (iv) any and all other documents or certificates executed in
connection with the Quilvest Loan Agreement, together with evidence that the
loan made by Quilvest pursuant to the Quilvest Loan Agreement in an amount not
less than $7,500,000 has funded (the "Quilvest Loan").
(i) The Agent shall have received, for the account of each Tranche C
Term Loan Lender, the Tranche C Term Loan Notes in the form of Exhibit B to this
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Amendment, executed and delivered by a duly authorized officer of the Company.
4. 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 Eighth Amendment
Effective Date; provided that
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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.
5. 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, acquits 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.
6. Continuing Effect. Except as amended hereby, the Credit Agreement
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shall continue to be and shall remain in full force and effect in accordance
with its terms.
7. Deferral Fee. (a) If the Extension Conditions have not been met
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or (b) the Terms Loans have not been repaid in full, in either case on or before
February 29, 2000, the Company shall pay to the Agent, for the benefit of each
Tranche C Term Loan Lender, a deferral fee in the amount of $1,000,000 (the
"Deferral Fee") in immediately available funds on March 15, 2000.
Notwithstanding the foregoing, if the Refinancing has closed on or prior to
March 31, 2000 (the "Deferral Date"), and all Obligations under the Credit
Agreement, the Capital Investment under the Receivables Purchase Agreement and
any other accrued and unpaid fees, interest and expenses have been paid in full,
the Deferral Fee shall not be due and payable.
8. Warrant Agreement. Notwithstanding anything contained in the
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Warrants to the contrary, each Tranche B Term Loan Lender and the Company agree
that, so long as the Extension Conditions have been satisfied in full on or
prior to February 29, 2000, each Tranche B Term Loan Lender's rights to
subscribe for and purchase shares of the Company's common stock on February 29,
2000 shall be deferred until the Deferral Date.
9. Consent and Waiver. Notwithstanding the provisions of Sections
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10.1 and 10.2 of the Credit Agreement, the Agent and Lenders hereby consent to
the execution and delivery by the Company of the Quilvest Loan Agreement. The
Agent and the Lenders hereby
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waive (i) the Event of Default arising under Section 11(c) of the Credit
Agreement caused solely by the Company's failure to comply with (x) subsection
(a) of Schedule 10.8 to the Credit Agreement for the fiscal month ended October
31, 1999 and (y) subsections (b), (c), (d) and (e) of Schedule 10.8 to the
Credit Agreement for the fiscal months ended October 31, 1999, November 30, 1999
and December 31, 1999 and (ii) for purposes of the reduction in the Revolving
Credit Commitments set forth in this Amendment only, the payment by the Company
of the Revolving Credit Commitment Reduction Fee set forth in Section 6.2 of the
Credit Agreement otherwise payable in accordance therewith, and (iii) provided
all Obligations under the Credit Agreement are paid in full on or prior to the
Deferral Date, the payment by the Company of the Revolving Credit Commitment
Reduction Fee set forth in Section 6.2 of the Credit Agreement otherwise payable
in connection therewith. 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.
10. Expenses. The Company agrees to pay and reimburse the Agent and
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each Lender for all of their respective 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 separate counsel
to the Agent and the Lenders.
11. 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.
12. 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 Eighth
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: ______________________
BANK OF AMERICA, N.A.
By: _________________________
Title: ______________________
SUNTRUST BANK
By: _________________________
Title:_______________________
By: _________________________
Title:_______________________
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EXHIBIT A TO EIGHTH AMENDMENT
FORM OF NOTICE OF
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TRANCHE C TERM LOAN BORROWING
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[Date]
General Electric Capital Corporation, as Agent
Commercial Finance Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice-President-Portfolio
Commercial Finance
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement, dated
as of March 18, 1998, among Pameco Corporation, the Lenders party thereto, and
General Electric Capital Corporation, as Agent (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
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Agreement"; the terms defined therein being used herein as therein defined)
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This is a Tranche C Term Loan borrowing request pursuant to Section
2.3B of the Credit Agreement:
(i) The requested Borrowing Date for the proposed borrowing (which
is a Business Day) is ______________, ____.
(ii) The aggregate amount of the proposed borrowing is
$______________.
(iii) The Type of Tranche C Term Loan comprising the proposed
borrowing are Index Rate Loans.
The undersigned hereby represents and warrants that the conditions
contained in subsection 8.2 of the Credit Agreement have been satisfied and
hereby confirms the granting of liens to the Agent, on behalf of the Lenders,
pursuant to the Collateral Documents. The undersigned further represents and
warrants that (i) the senior debt provider has not indicated to the Company or *
that it will no longer pursue the Refinancing, (ii) * and Quilvest have not
indicated that they will no longer pursue the Preferred Stock Sale, and (iii)
the vendors have not indicated that they will no longer pursue the Subordinated
Debt Issuance.
Very truly yours,
PAMECO CORPORATION
By: _________________________________
Title: ______________________________
cc: General Electric Capital Corporation
Attention: Collateral Analyst (Pameco)
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EXHIBIT B TO EIGHTH AMENDMENT
TRANCHE C TERM NOTE
$ _____________ New York, New York
December __, 1999
FOR VALUE RECEIVED, the undersigned, PAMECO CORPORATION, a Georgia
corporation (the "Company"), hereby unconditionally promises to pay to the order
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of ____________________, (the "Lender") at the office of General Electric
------
Capital Corporation, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ in
lawful money of the United States of America and in immediately available funds,
the principal amount of _______________ DOLLARS ($_________), or, if less, the
unpaid principal amount of the Tranche C Term Loan made by the Lender pursuant
to subsection 2.1 of the Credit Agreement, as hereinafter defined. The
principal amount shall be paid in the amounts and on the dates specified in
subsection 2.4(a). The Company further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time outstanding
at the rates and on the dates specified in subsections 6.3 and 6.4 of such
Credit Agreement.
The holder of this Tranche C Term Note is authorized to endorse on the
Schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the information set forth
in subsection 2.2 of the Credit Agreement. Each such endorsement shall
constitute prima facie evidence of the accuracy of the information enclosed.
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The failure to make any such endorsement (or any error in such endorsement)
shall not affect the obligations of the Company in respect of such Term Loan or
under the Credit Agreement.
This Tranche C Term Note (a) is one of the Tranche C Term Notes referred to
in the Amended and Restated Credit Agreement, dated as of March 10, 1998 (as
amended, supplemented or otherwise modified from time to time, the "Credit
------
Agreement"), among the Company, the Lenders and General Electric Capital
---------
Corporation, as Agent, (b) is subject to the provisions of the Credit Agreement
and (c) is subject to optional and mandatory prepayment in whole or in part as
provided in the Credit Agreement. This Tranche C Term Note is secured and
guaranteed as provided in the Loan Documents. Reference is hereby made to the
Loan Documents for a description of the properties and assets in which a
security interest has been granted, the nature and extent of the security and
the guarantees, the terms and conditions upon which the security interests and
each guarantee were granted and the rights of the holder of this Tranche C Term
Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Tranche C Term Note shall become, or may
be declared to be, immediately due and payable, all as provided in the Credit
Agreement.
All parties now and hereafter liable with respect to this Tranche C Term
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS TRANCHE C TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
PAMECO CORPORATION
By: ______________________________
Name:
Title:
-14-
SCHEDULE 1
TO THE EIGHTH AMENDMENT
LENDING OFFICES AND COMMITMENTS
-------------------------------
======================================================================================================================
Lender and Lending Office Tranche C Term Revolving Credit
Loan Commitment Commitment
======================================================================================================================
General Electric Capital Corporation $6,076,525 $20,833,800
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------
Wachovia Bank, N.A. $3,807,825 $13,055,400
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Contact: ▇▇▇▇ Shawl
----------------------------------------------------------------------------------------------------------------------
Bank of America, N.A. $3,807,825 $13,055,400
NC1-001-13-26
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇
----------------------------------------------------------------------------------------------------------------------
SunTrust Bank $3,807,825 $13,055,400
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Contact: ▇▇▇▇▇▇▇ ▇▇▇▇▇
======================================================================================================================
TOTAL $17,500,000.00 $60,000,000.00
-----
======================================================================================================================
-15-
ACKNOWLEDGMENT AND CONSENT
ACKNOWLEDGMENT AND CONSENT (this "Acknowledgment and Consent"), dated
--------------------------
as of December ___, 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 Eighth 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:
--------------------------
(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]
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
-------------
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
