EXHIBIT 10.41A
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment") is
made and entered into this 18th day of May, 2000, by and between PAMECO
CORPORATION, a Georgia corporation with its chief executive office and
principal place of business at 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000
("Borrower"); and FLEET CAPITAL CORPORATION, a Rhode Island corporation with
an office at 000 Xxxxxxxx Xxxxxxx, X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx 00000
("Agent"), in its capacity as collateral and administrative agent for the
Lenders (as defined in the Loan Agreement referenced below); and Lenders.
Recitals:
Lenders, Agent and Borrower are parties to a certain Loan and Security
Agreement dated February 17, 2000, as amended by that certain First Amendment
to Loan and Security Agreement dated February 29, 2000 (the "Loan Agreement"),
pursuant to which Lenders may make certain loans and other extensions of
credit to Borrower from time to time.
The parties desire to amend the Loan Agreement as hereinafter set forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good and
valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Definitions. All capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such terms in the
Loan Agreement.
2. Amendments to Loan Agreement. The Loan Agreement is hereby amended as
follows:
(a) By deleting the definition of "Consolidated Net Worth" from Appendix A
to the Loan Agreement and by substituting the following new definition in
lieu thereof:
Consolidated Net Worth--on any date of determination thereof, the sum on
such date of (i) the Consolidated net worth of Borrower and its
Subsidiaries after deducting therefrom the amount of all intangible items
reflected therein, including all unamortized debt discount and expense,
unamortized research and development expense, unamortized deferred charges,
goodwill, patents, trademarks, service marks, trade names, copyrights,
unamortized excess cost of investment in Subsidiaries over equity at dates
of acquisition and all similar items that could properly be treated as
intangibles in accordance with GAAP, (ii) Subordinated Debt, (iii) accrued
but undeclared Distributions with respect to preferred stock as reflected
on a Consolidated balance sheet of Borrower and its Subsidiaries and (iv)
the $35,000,000 investment in Series A redeemable preferred stock and
warrants of Borrower made by Xxxxxxxxxx and Quilvest on the Closing Date.
(b) By adding the following new clause (xi) to Section 9.2.3 of the Loan
Agreement that reads as follows:
(xi) Any Debt evidenced by the Series A Preferred Shares of Borrower
that have been issued by Borrower as of the Closing Date pursuant to the
Securities Purchase Agreement.
(c) By deleting Section 9.3.1 of the Loan Agreement and by substituting the
following new Section 9.3.1 in lieu thereof:
9.3.1. Consolidated Net Worth. Maintain a Consolidated Net Worth of at
least $20,000,000, tested as of the last day of each month; provided,
however, that the foregoing amount shall be increased as of the last day of
the second month following the end of each Fiscal Quarter, commencing with
the Fiscal Quarter ending May 31, 2001, by an amount equal to 50% of
Consolidated Net Income during each such Fiscal Quarter, but no reduction
in the foregoing amount shall be made if Consolidated Net Income in any
Fiscal Quarter is a negative number.
1. Ratification and Reaffirmation. Borrower hereby ratifies and reaffirms
the Obligations, each of the Loan Documents and all of Borrower's covenants,
duties, indebtedness and liabilities under the Loan Documents.
1. Acknowledgments and Stipulations. Borrower acknowledges and stipulates
that the Loan Agreement and the other Loan Documents executed by Borrower are
legal, valid and binding obligations of Borrower that are enforceable against
Borrower in accordance with the terms thereof; all of the Obligations are
owing and payable without defense, offset or counterclaim (and to the extent
there exists any such defense, offset or counterclaim on the date hereof, the
same is hereby waived by Borrower); and the security interests and Liens
granted by Borrower in favor of Agent, for the benefit of itself and Lenders,
are duly perfected, first priority security interests and Liens.
1. Representations and Warranties. Borrower represents and warrants to Agent
and Lenders, to induce Agent and Lenders to enter into this Amendment, that no
Default or Event of Default exists on the date hereof other than the
Designated Defaults referenced in Section 6; the execution, delivery and
performance of this Amendment have been duly authorized by all requisite
corporate action on the part of Borrower and this Amendment has been duly
executed and delivered by Borrower; and all of the representations and
warranties made by Borrower in the Loan Agreement are true and correct on and
as of the date hereof.
1. Limited Waiver of Default. Events of Default have occurred and currently
exist under the Loan Agreement as a result of Borrower's breach of Section
9.3.1 of the Loan Agreement (the "Designated Defaults"). The Designated
Defaults exist because of Borrower's failure to maintain Consolidated Net
Worth of at least $54,000,000 as of the fiscal periods ending February 29 and
March 31, 2000. Borrower represents and warrants that the Designated Defaults
are the only Default or Event of Default that exist under the Loan Agreement
and the other Loan Documents as of the date hereof. Agent and Lenders hereby
waive the Designated Default in existence on the date hereof. In no event
shall such waiver be deemed to constitute a waiver of (a) any Default or Event
of Default other than the Designated Defaults in existence on the date of this
Amendment or (b) Borrower's obligation to comply with all of the terms and
conditions of the Loan Agreement and the other Loan Documents from and after
the date hereof. Notwithstanding any prior, temporary mutual disregard of the
terms of any contracts between the parties, Borrower hereby agrees that it
shall be required strictly to comply with all of the terms of the Loan
Documents on and after the date hereof.
1. Breach of Amendment. This Amendment shall be part of the Loan Agreement
and a breach of any of any representation, warranty or covenant herein shall
constitute an Event of Default.
1. Expenses of Agent. Borrower agrees to pay, on demand, all costs and
expenses incurred by Agent in connection with the preparation, negotiation and
execution of this Amendment and any other Loan Documents executed pursuant
hereto and any and all amendments, modifications, and supplements thereto,
including, without limitation, the costs and fees of Agent's legal counsel and
any taxes or expenses associated with or incurred in connection with any
instrument or agreement referred to herein or contemplated hereby.
1. Effectiveness; Governing Law. This Amendment shall be effective upon
execution by Borrower and acceptance by Agent in Atlanta, Georgia (notice of
which acceptance is hereby waived), whereupon the same shall be governed by
and construed in accordance with the internal laws of the State of Georgia.
1. Successors and Assigns. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
1. No Novation, etc. Except as otherwise expressly provided in this
Amendment, nothing herein shall be deemed to amend or modify any provision of
the Loan Agreement or any of the other Loan Documents, each of which shall
remain in full force and effect. This Amendment is not intended to be, nor
shall it be construed to create, a novation or accord and satisfaction, and
the Loan Agreement as herein modified shall continue in full force and effect.
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1. Counterparts; Telecopied Signatures. This Amendment may be executed in
any number of counterparts and by different parties to this Amendment on
separate counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall
be deemed to be an original signature hereto.
1. Further Assurances. Borrower agrees to take such further actions as Agent
shall reasonably request from time to time in connection herewith to evidence
or give effect to the amendments set forth herein or any of the transactions
contemplated hereby.
1. Section Titles. Section titles and references used in this Amendment
shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreements among the parties hereto.
1. Waiver of Jury Trial. To the fullest extent permitted by Applicable Law,
the parties hereto each hereby waives the right to trial by jury in any
action, suit, counterclaim or proceeding arising out of or related to this
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed under seal in Atlanta, Georgia, and delivered by their respective
duly authorized officers on the date first written above.
PAMECO CORPORATION
ATTEST:
By: _________________________________
___________________________________
Name: ____________________________
___________________________________
Title: ___________________________
Name: ____________________________
FLEET CAPITAL CORPORATION, as Agent
Title: ___________________________
By: _________________________________
Title: ___________________________
FLEET CAPITAL CORPORATION, as a
Lender
By: _________________________________
Title: ___________________________
MELLON BANK, N.A., as a Lender
By: _________________________________
Title: ___________________________
FOOTHILL CAPITAL CORPORATION, as a
Lender
By: _________________________________
Title: ___________________________
[Signatures continued on following page]
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THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: _________________________________
Title: ___________________________
BANK OF AMERICA, N.A., as a Lender
By: _________________________________
Title: ___________________________
WACHOVIA BANK, N.A., as a Lender
By: _________________________________
Title: ___________________________
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CONSENT AND REAFFIRMATION
The undersigned guarantor of the Obligations of Borrower at any time owing
to Agent and Lenders hereby: (i) acknowledges receipt of a copy of the
foregoing Second Amendment to Loan and Security Agreement; (ii) consents to
Borrower's execution and delivery thereof and of the other documents,
instruments or agreements Borrower agrees to execute and deliver pursuant
thereto; (iii) agrees to be bound thereby; and (iv) affirms that nothing
contained therein shall modify in any respect whatsoever its guaranty of the
Obligations and reaffirms that such guaranty is and shall remain in full force
and effect.
IN WITNESS WHEREOF, the undersigned has executed this Consent and
Reaffirmation in Atlanta, Georgia, on the date of such Second Amendment to
Loan and Security Agreement.
PAMECO INVESTMENT COMPANY, INC.
By: _________________________________
Title: __________________________
Attest: _____________________________
Title: __________________________
[CORPORATE SEAL]
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