EXHIBIT 10.19a
AMENDMENT NO. 2
TO SECURITIZATION AGREEMENTS
AMENDMENT NO. 2, dated as of June 3, 1997, among PAMECO
SECURITIZATION CORPORATION, a Delaware corporation ("PSC"), PAMECO CORPORATION,
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a Delaware corporation ("Old Pameco"), NEW PAMECO GEORGIA CORPORATION, a Georgia
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corporation ("New Pameco"), REDWOOD RECEIVABLES CORPORATION ("Redwood") and
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GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation ("GECC").
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WHERAS, Old Pameco, as originator (in such capacity, the "Originator
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and PSC are parties to a Receivables Transfer Agreement, dated as of April 29,
1996 (as heretofore amended, supplemented or otherwise modified, the "Transfer
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Agreement"); and
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WHEREAS, PSC, as seller (in such capacity, the "Seller"), Redwood, as
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purchaser (in such capacity, the "Purchaser"), GECC, as operating agent (in such
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capacity, the "Operating Agent") and collateral agent (in such capacity, the
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"Collateral Agent") and Old Pameco, as servicer (in such capacity, the
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"Servicer") are parties to a Receivables Purchase and Servicing Agreement, dated
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as of April 29, 1996 (as heretofore amended, supplemented or otherwise modified,
the "Purchase Agreement"); and
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WHEREAS, Old Pameco, PSC, Redwood and GECC, as Operating Agent,
Collateral Agent and as lenders' agent, are parties to an Intercreditor
Agreement, dated as of April 29, 1996 (as heretofore amended, supplemented or
otherwise modified, the "Intercreditor Agreement"); and
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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, the
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Purchase Agreement, and the Intercreditor Agreement, the "Securitization
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Agreements"); and
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WHEREAS, it is contemplated that Old Pameco and its parent company
Pameco Holding, Inc., a Delaware corporation ("Holdings"), will be merged with
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and into New Pameco with New Pameco being the surviving corporation from such
merger (the "New Pameco Merger"), and it is further contemplated that New Pameco
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will change its name to "Pameco Corporation" upon the closing of the New Pameco
Merger; and
WHEREAS, as a result of the New Pameco Merger, Old Pameco will assign
to New Pameco, and New Pameco will assume, all of Old Pameco's rights and
obligations under the Securitization Agreements and the other Related Documents,
and Redwood and GECC are willing to consent to the New Pameco Merger and permit
such assignment and assumption to occur on the terms and subject to the
conditions of this Amendment No. 2; and
WHEREAS, the parties hereto also desire to further 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
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otherwise defined, are used as defined in the Purchase Agreement.
ARTICLE II
CONSENTS, ACKNOWLEDGMENTS AND ASSUMPTIONS
SECTION 2.1 CONSENTS AND AGREEMENTS RELATING TO THE NEW PAMECO MERGER
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AND INITIAL PUBLIC OFFERING. (a) Redwood and GECC (in their respective
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capacities as the Purchaser, the Operating Agent and the Collateral Agent)
hereby consent to the consummation of the New Pameco Merger and the related
initial public offering of shares of the c ommon stock of New Pameco (the "New
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Pameco IPO") and agree that the New Pameco Merger and the New Pameco IPO will
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not cause a Termination Event under Section 9.01(i) of the Purchase Agreement
provided that the New Pameco Merger and the New Pameco IPO are consummated on
the terms and conditions disclosed in the registration statement (file number
333-24043) filed by New Pameco with the Securities and Exchange Commission (as
amended as of the date hereof, the "Registration Statement") or on such other
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terms and conditions as may be approved in writ ing by Redwood and GECC.
(b) Redwood and GECC (in their respective capacities as the Purchaser,
the Operating Agent and the Collateral Agent) hereby further consent to Seller's
amending its Certificate of Incorporation as provided on Annex E attached hereto
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and Seller agrees to so amend its Certificate of Incorporation within two (2)
Business Days after the effective date of the New Pameco Merger, Seller shall
provide Redwood and GECC with copies of such amendment as filed with the
Secretary of State of Delaware.
SECTION 2.2 ASSIGNMENT AND ASSUMPTION. (a) On the Second Amendment
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Effective Date (as defined below), and without the necessity of any further
action, (i) Old Pameco shall have assigned to New Pameco all of Old Pameco's
rights, titles and interests in and to the Securitization Agreements and the
other Related Documents and New Pameco hereby agrees to accept such assignment,
and (ii) Old Pameco shall have assigned to New Pameco all of Old Pameco's
covenants, representations, warranties, duties, obligations, indebtedness and
liabilities under the Securitization Agreements and the other Related Documents
(whether arising or accruing before, on or after the consummation of the New
Pameco Merger) and New Pameco shall have assumed such covenants,
representations, warranties, duties, obligations, indebtedness
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and liabilities and agrees to perform and observe them to the same extent as if
it were an original signatory to the Securitization Agreements and the other
Related Documents.
(b) New Pameco agrees that all rights, titles and interests acquired
by New Pameco in the Transferred Receivables of Old Pameco as a result of the
consummation of the New Pameco Merger shall continue to be subject to the
rights, titles and interests of Redwood under the Purchase Agreement and the
other Related Documents. For avoidance of doubt, New Pameco agrees that, from
and after the consummation of the New Pameco Merger, (i) New Pameco shall sell
or contribute to PSC all Receivables originated by New Pameco, all in accordance
with the Transfer Agreement, (ii) New Pameco shall be and shall serve as the
"Originator" and the "Servicer" for all purposes of the Securitization
Agreements and the other Related Documents and shall perform and observe all of
the covenants, duties, agreements, terms, conditions, obligations and
liabilities of the "Originator" and the "Servicer" thereunder to the same extent
as if it were an original signatory thereto and on the terms and subject to the
conditions of the Securitization Agreements and the other Related Documents, and
(iii) all references to the "Originator", the "Parent", the "Servicer" or the
"Inventory Borrower" in any of the Securitization Agreements or the other
Related Documents shall be deemed to be references to New Pameco as successor by
merger to Old Pameco and Holdings.
SECTION 2.3 NEW PAMECO NOTE AND ASSIGNMENT. On the Second Amendment
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Effective Date, New Pameco shall execute and deliver to PSC a Pameco Note (the
"New Pameco Note") in substantially in the form of Annex A attached hereto, in
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substitution and exchange for, but not in payment of, that certain Pameco Note
of Old Pameco dated May 1, 1996, as amended and restated, made in favor of PSC
in the principal amount of $50,000,000, and New Pameco also shall execute and
deliver to PSC an Assignment (the "New Assignment") in substantially in the form
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of the Annex B attached hereto, in substitution and exchange for the Assignment
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dated April 29, 1996 executed by Old Pameco in favor of PSC.
ARTICLE III
AMENDMENTS TO TRANSFER AGREEMENT
SECTION 3.1 AMENDMENTS TO SCHEDULE 1 AND 2. Schedules 1 and 2 to the
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Transfer Agreement are deleted in their entireties and the updated Schedules 1
and 2 attached hereto are hereby substituted in lieu thereof, respectively.
ARTICLE IV
AMENDMENTS TO PURCHASE AGREEMENT
SECTION 4.1 AMENDMENT OF SECTION 4.01(C). Section 4.01(c) of the
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Purchase Agreement is amended by deleting that Section in its entirety and
substituting therefor the following:
(c) The Seller is and has been a wholly-owned Subsidiary of Pameco
Corporation, a Georgia corporation and the successor by merger to Pameco
Corporation and Pameco Holdings, Inc., both formerly Delaware corporations.
3
SECTION 4.2 AMENDMENT OF SCHEDULE 3. Schedule 3 to the Purchase
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Agreement is amended by deleting therefrom the definitions of the terms "Daily
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Margin" and "Daily Default Margin" and by substituting the following new
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definitions of such terms in lieu thereof:
"Daily Margin" and "Daily Default Margin" mean the following
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percentages divided by 360:
Daily Margin Daily Default Financial Covenants
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Margin
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1.25% 3.25% Interest Coverage Ratio less than 2.75 to
1.0
1.00% 3.00% Interest Coverage Ratio equal to or
more than 2.75 to 1.0
SECTION 4.3 AMENDMENTS TO EXHIBIT H. Exhibit H of the Purchase
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Agreement is deleted in its entirety and the revised Exhibit H attached hereto
is hereby substituted in lieu thereof.
ARTICLE V
AMENDMENT TO ANNEX X
SECTION 5.1 AMENDMENT TO ANNEX X. Annex X is hereby amended by:
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(a) deleting from the definition of "Fee Letter" the date
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"January 24, 1997" and substituting therefor the date "June 3, 1997";
(b) deleting from the definition of "Originator" the reference to
"Pameco Corp., a Delaware corporation" and by substituting therefor a
reference to "Pameco Corporation, a Georgia corporation formerly known as
New Pameco Georgia Corporation and the successor by merger to Pameco
Corporation and Pameco Holdings, Inc."; and
(c) adding thereto in correct alphabetical order the following
new definitions:
"Amendment No. 2" shall mean the Amendment No. 2 to
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Securitization Agreements, dated as of June 3, 1997, among the Seller,
Pameco Corporation, New Pameco Georgia Corporation, the Purchaser, the
Operating Agent and the Collateral Agent.
"New Pameco" shall have the meaning assigned to it in Amendment
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No. 2.
"Second Amendment Effective Date" shall have the meaning assigned
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to it in Amendment No. 2.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1 REPRESENTATIONS AND WARRANTIES OF PSC, OLD PAMECO AND NEW
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PAMECO. Each of PSC, Old Pameco and New Pameco represents and warrants that:
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(a) each of this Amendment No. 2, the New Pameco Note, the New
Assignment and the Fee Letter described in Section 7.1(b) hereof (the "New Fee
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Letter") has been duly authorized, executed and delivered by each such party
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which is a signatory thereto;
(b) each of this Amendment No. 2, the New Pameco Note, the New
Assignment and the New Fee Letter constitutes the legal, valid and binding
obligation of each such party which is a signatory thereto;
(c) prior to the consummation of the Merger, New Pameco was not
engaged in any business activities and had incurred no Indebtedness (as defined
in the Credit Agreement); and
(d) each of the representations and warranties of such party set forth
in the Securitization Agreements or in this Amendment No. 2 is true and correct
as of the Second Amendment Effective Date (as defined below); provided, that (i)
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all 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. 2 and to the Transfer Agreement as amended by this
Amendment No. 2, respectively, and all references to the Pameco Note and the
Assignment shall be deemed references to the New Pameco Note and the New
Assignment, respectively, and (ii) all references in the Securitization
Agreements to the "Originator", the "Servicer" or the "Parent" shall be deemed
to be references to New Pameco as successor by merger to Old Pameco and Holdings
(and New Pameco hereby makes each such representation and warranty to and for
the benefit of the Seller, the Purchaser, the Operating Agent and the Collateral
Agent as if the same were set forth in full herein).
SECTION 6.2 REPRESENTATIONS AND WARRANTIES OF REDWOOD. Redwood
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represents and warrants that:
(a) this Amendment No. 2 and the New Fee Letter have been duly
authorized, executed and delivered by Redwood;
(b) this Amendment No. 2 and the New Fee Letter constitute the legal,
valid and binding obligations of Redwood; and
(c) each of the representations and warranties of Redwood party set
forth in the Securitization Agreements is true an correct as of the Second
Amendment Effective Date (as defined below); provided, that references in the
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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. 2 and to the Transfer Agreement as amended by this Amendment
No. 2, respectively, and references to the Pameco Note and the Assignment shall
be deemed references to the New Pameco Note and the New Assignment,
respectively.
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ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1 CONDITIONS PRECEDENT. This Amendment No. 2 shall become
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effective (the actual date of such effectiveness, the "Second Amendment
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Effective Date") as of the date first above written subject to the satisfaction
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of the following conditions precedent: that the Purchaser, the Operating Agent
and the Collateral Agent shall each have received the following, in form and
substance satisfactory to the Operating Agent:
(a) Counterparts hereof shall have been duly executed and delivered by
the parties hereto;
(b) PSC shall have received the New Pameco Note and the New
Assignment, executed and delivered by a duly authorized officer of New Pameco;
(c) the Fee Letter dated June 3, 1997, in the form of Annex D attached
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hereto, from the Operating Agent to Redwood shall have been entered into by all
parties thereto;
(d) the Purchaser, the Operating Agent and the Collateral Agent shall
have received executed legal opinions (including true sale and substantive
consolidation opinions) of Xxxxxxxxxx Xxxxxxxx LLP, counsel to PSC, Old Pameco
and New Pameco, in form and substance satisfactory to the Operating Agent;
(e) the Operating Agent shall have received a certificate of the
Secretary or an Assistant Secretary of each of PSC, Old Pameco and New Pameco,
dated as of the Second Amendment Effective Date, and certifying (i) the names
and true signatures of the officers authorized on its behalf to sign this
Amendment No. 2 (and in the case of New Pameco, the New Pameco Note and the New
Assignment), (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. 2 and the related transactions to which it is
a party, all in form and substance satisfactory to the Operating Agent, and 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 Operating Agent shall have received an Officer's Certificate
from each of PSC and New Pameco in the forms of Annexes C-1 and C-2 hereto,
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respectively;
(g) the Operating Agent shall have received a Certificate of
Existence, dated no more than ten (10) days prior to the Second Amendment
Effective Date, with respect to New Pameco from the Secretary of State of
Georgia;
(h) the Operating Agent shall have received certified copies of
requests for information or copies on form UCC-11 (or a similar search report
certified by a party acceptable to the Operating Agent), dated a date no more
than fourteen (14) days prior to the Second Amendment Effective Date, listing
all effective financing statements and other similar instruments and documents
which name New Pameco (under its present names and any previous names) as
debtor, together with copies of such financing statements none of which shall
cover any of the
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Transferred Receivables unless termination statements or statements of release
are provided with respect thereto;
(i) executed financing statements (form UCC-1), in respect of
Transferred Receivables, naming New Pameco as the assignee, or other similar
instruments or documents as may be necessary, or in the opinion of the Operating
Agent desirable, under the UCC of all appropriate jurisdictions or any other
applicable law (including the Assignment of Claims Act) to perfect the
Purchaser's and the Collateral Agent's interest in all Transferred Receivables
in which an interest may be assigned under the Securitization Agreement;
(j) the consummation of the transactions contemplated hereby and by
the Registration Statement shall not contravene, violate or conflict with, or
involve the Agent or any Lender in a violation of, any Requirement of Law (as
defined in the Credit Agreement);
(k) the New Pameco Merger shall have been consummated as contemplated
by the IPO documents and the Registration Statement , Redwood and GECC shall
have received a fully executed copy of the related Agreement and Plan of Merger,
dated as of May 9, 1997, among Old Pameco, New Pameco and Holdings, and Redwood
and GECC shall have received a copy of the Certificate of Merger for the New
Pameco Merger as filed with the offices of the Secretaries of State of the
States of Delaware and Georgia ; and
(l) PSC, Old Pameco and New Pameco shall have taken such other actions
and provided such other documentation as the Operating Agent may request.
SECTION 7.2 CONDITIONS SUBSEQUENT. (a) The New Pameco IPO shall be
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consummated as contemplated by the Registration Statement on or before June 10,
1997 and on the date that the New Pameco IPO is consummated (which date shall be
no later than June 10, 1997) (the "IPO Closing Date"), New Pameco shall provide
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to Redwood and GECC evidence satisfactory to Redwood and GECC of the
consummation of the New Pameco IPO.
(b) Within two (2) Business Days after the effective date of the New
Pameco Merger, Seller shall provide Redwood and GECC with evidence satisfactory
to Redwood and GECC of the amendment of Seller's Certificate of Incorporation in
accordance with Section 2.1(b) of this Amendment No. 2.
Any default by New Pameco in the observance or performance of any of
the foregoing conditions subsequent shall be deemed a "Termination Event" and an
"Event of Servicer Termination" under the Purchase Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 COUNTERPARTS. This Amendment No. 2 may be executed on
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any number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
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SECTION 8.2 GOVERNING LAW. THIS AMENDMENT NO. 2 SHALL BE GOVERNED
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BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
SECTION 8.3 EXPENSES. New Pameco agrees to pay and reimburse the
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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. 2, including the reasonable fees and expenses of counsel to the
Operating Agent and the Collateral Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
2 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: Vice President
PAMECO CORPORATION
By:____________________________________________
Title: Treasurer
NEW PAMECO GEORGIA CORPORATION
By:____________________________________________
Title: Treasurer
REDWOOD RECEIVABLES 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:
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ANNEX A
PAMECO NOTE
$50,000,000.00 May 1, 1996
Amended and Restated
June 3, 1997
FOR VALUE RECEIVED, PAMECO CORPORATION ("Pameco"), a Georgia
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corporation formerly known as New Pameco Georgia Corporation and the successor
by merger to Pameco Corporation ("Old Pameco") and Pameco Holdings, Inc., both
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Delaware corporations, hereby promises to pay to PAMECO SECURITIZATION
CORPORATION (the "Lender"), for its account, the principal sum of FIFTY MILLION
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DOLLARS ($50,000,000) (or such lesser amount as shall equal the aggregate unpaid
principal amount of the PRC Loans made by the Lender to Pameco under the
Transfer Agreement referred to below), in lawful money of the United States of
America and in immediately available funds immediately on the demand of the
Lender.
The date, amount and interest rate, of each PRC Loan made by the
Lender to Pameco, and each payment made on account of the principal thereof,
shall be recorded by the Lender on its books and, prior to any transfer of this
Note, endorsed by the Lender on the schedule attached hereto or any continuation
thereof.
This Note is the Pameco Note referred to in the Receivables Transfer
Agreement (as modified and supplemented and in effect from time to time, the
"Transfer Agreement") dated as of May 1, 1996 by and among Old Pameco and the
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Lender and evidences PRC Loans made by the Lender thereunder. Capitalized terms
used in this Note and not defined herein have the respective meanings assigned
to them in the Transfer Agreement.
The Transfer Agreement provides for prepayments of PRC Loans upon the
terms and conditions specified therein.
Notwithstanding any other provisions contained in this Note, if at any
time the rate of interest payable by Pameco under this Note, when combined with
any and all other charges provided for in this Note, in the Purchase Agreement
or in any other document (to the extent such other charges would constitute
interest for the purpose of any applicable law limiting interest that may be
charged on this Note), exceeds the highest rate of interest permissible under
applicable law (the "Maximum Lawful Rate"); then so long as the Maximum Lawful
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Rate would be exceeded the rate of interest under this Note shall be equal to
the Maximum Lawful Rate. If at any time thereafter the rate of interest payable
under this Note is less than the Maximum Lawful Rate, Pameco shall continue to
pay interest under this Note at the Maximum Lawful Rate until such time as the
total interest paid by Pameco is equal to the total interest that would have
been paid had such applicable law not limited the interest rate payable under
this Note. In no event shall the total interest received by the Lender under
this Note exceed the amount which the
Lender could lawfully have received had the interest due under this Note been
calculated since the date of this Note at the Maximum Lawful Rate.
If any payment under this Note falls due on a day which is not a
Business Day, then such due date shall be extended to the next succeeding
Business Day and interest (calculated at the Pameco Interest Rate for each day
during the period then ending) shall be payable on the principal so extended.
This Note is being issued in replacement of and substitution for that
certain Pameco Note dated May 1, 1996, as amended and restated as of January 24,
1997, by Old Pameco to the order of the Lender in the principal amount of
$50,000,000. In addition to the indebtedness evidenced by this Note, this Note
shall also evidence any accrued and unpaid interest on such preceding note.
Pameco expressly waives presentment, demand, diligence, protest and
all notices of any kind whatsoever with respect to this Note.
This Note is made and delivered in New York, New York and shall be
governed by, and construed in accordance with, the internal laws (without
application of its conflict of laws provisions) of the State of New York.
IN WITNESS WHEREOF, Pameco has caused this Note to be signed and
delivered by its duly authorized officer as of the date set forth above.
PAMECO CORPORATION
By:__________________________________
Name: Xxxx X. XxXxxxxx
Title: Treasurer
ANNEX B
ASSIGNMENT
ASSIGNMENT, dated as of June 3, 1997 between Pameco Corporation (the
"Originator"), a Georgia corporation formerly known as New Pameco Georgia
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Corporation (and the successor by merger to Pameco Corporation and Pameco
Holdings, Inc., both Delaware corporations), and Pameco Securitization
Corporation, a Delaware corporation ("PSC").
1. We refer to the Receivables Transfer Agreement dated as of April
29, 1996, as amended (the "Transfer Agreement") between the Originator and PSC.
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All provisions of such Transfer Agreement are incorporated herein by reference.
All capitalized terms shall have the meanings set forth in the Transfer
Agreement.
2. The Originator does hereby sell or contribute, to PSC, without
recourse, except as provided in Section 4.04 of the Transfer Agreement, all
right, title and interest of the Originator in and to all Transferred
Receivables transferred from time to time from the Originator under the Transfer
Agreement.
3. THIS CERTIFICATE OF ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
PAMECO CORPORATION, a PAMECO SECURITIZATION
Georgia corporation CORPORATION, a Delaware corporation
By:____________________________ By:__________________________________
Name: Xxxx X. XxXxxxxx Name: Xxxx X. XxXxxxxx
Title: Treasurer Title: Vice President
ANNEX C-1
FORM OF OFFICER'S CERTIFICATE OF SELLER
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PAMECO SECURITIZATION CORPORATION
OFFICER'S CERTIFICATE
I, Xxxx X. XxXxxxxx, the duly elected Vice President of Pameco
Securitization Corporation (the "Seller"), hereby certify pursuant to Section
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7.1(f) of Amendment No. 2 to Securitization Agreements, dated as of June 3, 1997
("Amendment No. 2"; capitalized terms used but not defined in this Officer's
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Certificate having the meaning set forth in Amendment No. 2), among the Seller,
Pameco Corporation, New Pameco Georgia Corporation, Redwood Receivables
Corporation, 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. 2, 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, in Amendment
No. 2, 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 on and as of
the date of this Officer's Certificate 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 3rd day of June, 1997.
PAMECO SECURITIZATION CORPORATION
By:__________________________________
Name: Xxxx X. XxXxxxxx
Title: Vice President
ANNEX C-2
FORM OF OFFICER'S CERTIFICATE OF SERVICER
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PAMECO CORPORATION
OFFICER'S CERTIFICATE
I, Xxxx X. XxXxxxxx, the duly elected Treasurer of Pameco Corporation
(the "Servicer"), a Georgia corporation formerly known as New Pameco Georgia
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Corporation, and the successor by merger to Pameco Corporation and Pameco
Holdings, Inc., both Delaware corporations, hereby certify pursuant to Section
7.1(f) of Amendment No. 2 to Securitization Agreements, dated as of June 3, 1997
("Amendment No. 2"; capitalized terms used but not defined in this Officer's
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Certificate having the meaning set forth in Amendment No. 2), among Pameco
Securitization Corporation, Pameco Corporation, the Servicer, Redwood
Receivables Corporation, 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. 2, no
Termination Event or Incipient Event will have occurred and be continuing; and
(2) The representations and warranties of the Servicer contained in
Section 4.01 of the Purchase Agreement, in the Transfer Agreement, in Amendment
No. 2, and in any other document, certificate or financial or other statement
delivered by the Servicer in connection with the Purchase Agreement or the
Transfer Agreement are true and correct in all material respects on and as of
the date of this Officer's Certificate 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 3rd day of June, 1997.
PAMECO CORPORATION
By:__________________________________
Name: Xxxx X. XxXxxxxx
Title: Treasurer
ANNEX D
June 3, 1997
Pameco Corporation
0000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Pameco Securitization Corporation
0000 Xxxxxx Xxxxx - Xxxxx X
Xxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
We refer to (i) the Receivables Purchase and Servicing Agreement dated
as of April 29, 1996, as amended (the "Purchase Agreement") among Pameco
Securitization Corporation, as seller (the "Seller"), Redwood Receivables
Corporation, as purchaser ("Redwood"), General Electric Capital Corporation, as
operating agent ("GECC"), and Pameco Corporation, as servicer, and (ii) the
Credit Agreement dated as of March 19, 1992, as amended (the "Credit
Agreement"), among Pameco Corporation, the lenders listed therein (the
"Lenders") and GECC, as agent for the Lenders (in such capacity, the "Agent").
Terms not otherwise defined in this letter shall have the meanings assigned to
them under the Purchase Agreement. All references herein to "Pameco Corporation"
shall be deemed to be references to Pameco Corporation, a Georgia corporation
formerly known as New Pameco Georgia Corporation and the successor by merger to
Pameco Corporation and Pameco Holdings, Inc.
This letter is the Fee Letter referred to in the Purchase Agreement
and in the Credit Agreement and sets forth our understanding with respect to
certain fees that are payable by the Seller and Pameco Corporation pursuant to
the Purchase Agreement and the Credit Agreement. This letter supersedes and
replaces that certain Fee Letter among us dated January 24, 1997.
The parties to this letter agree as follows:
1. The Seller and Pameco Corporation shall pay an Unused Commitment
Fee equal to one quarter of one percent (0.25%) per annum calculated daily
and payable monthly on the amount by which $100,000,000 exceeds the sum of
(i) the outstanding Capital Investment on such date and (ii) the
outstanding "Loans" under the Credit Agreement on such date (such sum, the
"Total Outstandings"), with the Seller being responsible for the Unused
Commitment Fee based on that portion of Total Outstandings on each day
representing outstanding Capital Investments and Pameco Corporation being
responsible for the Unused Commitment Fee based on that portion of Total
Outstandings on each day representing outstanding "Loans" under the Credit
Agreement.
2. The provisions of Sections 14.04(a) of the Purchase Agreement are
incorporated herein.
3. This letter shall be governed by, and construed in accordance
with, New York law.
Very truly yours,
GENERAL ELECTRIC CAPITAL
CORPORATION, as Lender, as Agent and as
Operating Agent
By:_____________________________________
Name:
Title:
REDWOOD RECEIVABLES
CORPORATION
By:_____________________________________
Name:
Title:
Agreed and accepted as of
the date first above written:
PAMECO SECURITIZATION CORPORATION
as Seller
By:______________________________
Name: Xxxx X. XxXxxxxx
Title: Vice President
PAMECO CORPORATION
as Servicer
By:______________________________
Name: Xxxx X. XxXxxxxx
Title: Treasurer
EXHIBIT H
TO
PURCHASE AGREEMENT
FINANCIAL COVENANTS
-------------------
1. The Servicer 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) Servicer EBITDA. As of any date of determination, the Servicer
---------------
EBITDA for the preceding twelve consecutive fiscal months shall not be less than
$7,800,000.
(b) Interest Coverage Ratio. As of any date of determination, the
-----------------------
Interest Coverage Ratio for the preceding twelve consecutive fiscal months shall
not be less than 1.7 to 1.0.
(c) Fixed Charge Coverage Ratio. As of any date of determination, the
---------------------------
ratio of (i) Servicer EBITDA to (ii) Servicer Fixed Charges for the preceding
twelve consecutive fiscal months shall not be less than 1.05 to 1.0.
(d) Maintenance of Net Worth. The Servicer Net Worth on the last day of
------------------------
each fiscal quarter ending on the last day of any fiscal year set forth below
shall not be less than the amount set forth opposite such fiscal year:
FISCAL YEAR ENDING AMOUNT
------------------ ------
February 28, 1998 $52,500,000
February 28, 1999 $56,000,000
Each Fiscal Year
ending thereafter $59,500,000
2. Capitalized terms used in this Exhibit H and not defined in Annex X shall
have the meaning ascribed to such terms in the Credit Agreement; provided that
all references to (i) the "Company" or "Holdings" shall mean the Servicer and
(ii) "this Agreement" shall mean the Credit Agreement.
H-1
SCHEDULE 1 TO
TRANSFER AGREEMENT
LIST OF CHIEF EXECUTIVE
OFFICES OF THE ORIGINATOR
-------------------------
0000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
LIST OF OTHER OFFICES OF THE
ORIGINATOR WHERE RECORDS ARE KEPT
---------------------------------
0000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
TRADE NAMES, FICTITIOUS NAMES, ASSUMED NAMES
AND "DOING BUSINESS AS" NAMES OF THE ORIGINATOR
-----------------------------------------------
Pameco Corp. Knoxville Refrigeration
National Temperature Control Centers R&R Supply
NTCC Thermal Company
Melchoir, Armstrong, Dessau Thermal Supply
Melco Xxxxxxxxx Distribution
Xxxxxx Refrigeration Pameco-Aire
Xxxxxx Brothers Gulf Coast Air Conditioning
J & P Supply Rick's Supply
Chase Supply
Xxxxx Supply
Xxxxxx-Xxxxx
SCHEDULE 2 TO
TRANSFER AGREEMENT
PRIOR NAMES OF ORIGINATOR
-------------------------
JUNE 3, 1997 - Pameco Corporation and Pameco Holdings, Inc., both Delaware
corporations, were merged with and into New Pameco Georgia
Corporation, a Georgia corporation, which was the surviving
corporation from such merger and changed its name to "Pameco
Corporation" upon the closing of such merger
MARCH 19, 1992 - Name changed from MLX Refrigeration & Air Conditioning
Group, Inc. to Pameco Corporation
MARCH 1, 1989 - Name changed from National Temperature Control Centers, Inc.
to MLX Refrigeration & Air Conditioning Group, Inc.
JANUARY 16, 1986 - Name changed from NTCC Acquisition Company to National
Temperature Control Centers, Inc.
OCTOBER 1, 1985 - Incorporated as NTCC Acquisition Company
ANNEX E
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
PAMECO SECURITIZATION CORPORATION
Pursuant to the provisions of Section 242 of the Delaware General
Corporation Law, the undersigned, Pameco Securitization Corporation, a Delaware
corporation (the "Corporation") adopts the following Certificate of Amendment to
its Certificate of Incorporation:
I.
The name of the Corporation is Pameco Securitization Corporation.
II.
The Board of Directors and sole Shareholder of the Corporation have duly
adopted and approved the amendment to the Certificate of Incorporation as set
forth in this Certificate of Amendment in accordance with the provisions of
Section 242(b)(1).
III.
The Certificate of Incorporation of the Corporation is hereby amended by
deleting the reference to "Pameco Corporation, a Delaware corporation" where it
appears in Paragraph (i) of the Sixth Section and replacing it with "Pameco
Corporation, a Georgia corporation (and the successor by merger to Pameco
Corporation, a Delaware corporation)."
IV.
This Amendment to the Certificate of Incorporation shall become effective
upon filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment to the Certificate of Incorporation of Pameco Securitization
Corporation this 3rd day of June, 1997.
PAMECO SECURITIZATION CORPORATION
By:_______________________________
Xxxxxxxx X. Xxxxxxxx, President
