EXHIBIT 10.19C
AMENDMENT NO. 5
TO SECURITIZATION AGREEMENTS
AMENDMENT NO. 5, dated as of June 15, 1999, among PAMECO
SECURITIZATION CORPORATION, a Delaware company ("PSC"), PAMECO CORPORATION, a
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Georgia company ("Pameco"), REDWOOD RECEIVABLES CORPORATION ("Redwood") and
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GENERAL ELECTRIC CAPITAL CORPORATION, a New York company ("GECC").
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WHEREAS, 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");
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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 Pameco, as servicer (in such capacity, the "Servicer")
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are parties to a Receivables Purchase and Servicing Agreement, dated as of April
29, 1996 (as heretofore amended, supplemented or otherwise modified, the
"Purchase Agreement");
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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 and
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the Purchase Agreement, the "Securitization Agreements"); and
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WHEREAS, the parties hereto desire to 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
AMENDMENTS TO PURCHASE AGREEMENT AND ANNEX X
SECTION 2.1 Amendment to Exhibit H. Exhibit H to the Purchase
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Agreement is hereby amended by:
(a) deleting subsection 1(a) in its entirety and replacing it with the
following:
"(a) Servicer EBITDA. As of the last day of each fiscal quarter of
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the Servicer, 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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May 31, 1999 $20,012,000
August 31, 1999 $18,524,000
November 30, 1999 $18,976,000
February 29, 2000 $17,272,000
For each fiscal quarter thereafter $20,000,000"
(b) deleting subsection 1(c) in its entirety and replacing it with the
following:
"(c) Fixed Charge Coverage Ratio. As of the last day of each
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fiscal quarter of the Servicer, the ratio of (i) Consolidated EBITDA to
(ii) Consolidated Fixed Charges for the preceding twelve consecutive fiscal
months shall not be less than the ratio set forth below opposite such
period:
Fiscal Quarter Ending Ratio
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May 31, 1999 1.43 to 1.00
August 31, 1999 1.20 to 1.00
November 30, 1999 1.07 to 1.00
February 29, 2000 0.85 to 1.00
For each fiscal quarter thereafter 1.25 to 1.00"
(c) deleting subsection 1(d) in its entirety and replacing it with the
following:
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"(d) Maintenance of Net Worth. (i) The Company Net Worth on the
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last day of each fiscal quarter ending on the day set forth below shall not
be less than the amount set forth opposite such date:
Fiscal Year Ending Amount
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May 31, 1998 (first fiscal quarter) $65,000,000
August 31, 1998 (second fiscal quarter) $65,000,000
November 30, 1998 (third fiscal quarter) $65,000,000
February 28, 1999 (fiscal year) $65,000,000 plus 50% of
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Consolidated Net Income for the
fiscal year then ended
(ii) Commencing with the fiscal year of the Servicer ending on
February 29, 2000, (A) the Company Net Worth on the last day of each
of the first, second and third fiscal quarters of each fiscal year of
the Servicer shall not be less than the minimum Company Net Worth of
the Servicer required pursuant to this paragraph (d) for the fourth
quarter of the immediately preceding fiscal year of the Servicer and
(B) the Company Net Worth on the last day of each fiscal year of the
Servicer shall not be less than the minimum Company Net Worth required
pursuant to this paragraph (d) for the third quarter of such fiscal
year plus 50% of Consolidated Net Income for such fiscal year.
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The terms "Consolidated EBITDA", "Consolidated Fixed Charges", "Company Net
Worth" and "Consolidated Net Income" shall have the meanings ascribed to
such terms in the Credit Agreement."
SECTION 2.2 Amendment to 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 percentages
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divided by 360:
Daily Margin Daily Default Margin Interest Coverage Ratio
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1.25% 3.25% Less than 1.75
1.00% 3.00% Greater than or equal to 1.75 and less than 3.50
0.75% 2.75% Greater than or equal to 3.50 and less than 5.50
0.625% 2.625% Greater than or equal to 5.50
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The term "Interest Coverage Ratio" shall have the meaning ascribed to such
term in the Credit Agreement.
Notwithstanding the foregoing, for the period from the Amendment Effective
Date to and until the date (based on quarterly financial data) on which,
for the preceding twelve (12) consecutive fiscal months, (a) Consolidated
EBITDA is not less than $20,000,000, (b) the Fixed Charge Coverage Ratio is
not less than 1.25 to 1.00, (c) the Consolidated Senior Debt Leverage Ratio
is not greater than 5.00 to 1.00, and (d) the Consolidated Total Debt
Leverage is not greater than 6.00 to 1.00, the Daily Margin and Daily
Default Margin will be as follows:
Daily Margin Daily Default Margin
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1.75% 3.75%
The terms "Consolidated Senior Debt Leverage Ratio", "Fixed Charge Coverage
Ratio", "Consolidated Total Debt Leverage Ratio" and "Consolidated EBITDA"
shall have the meanings ascribed to such terms in the Credit Agreement."
SECTION 2.3 Amendment to Annex X. Annex X is hereby amended by:
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(a) deleting from the definition of "Fee Letter" the date
"October 16, 1998" and substituting therefor the date "June 15, 1999".
ARTICLE III
WAIVER
SECTION 3.1 Waiver. The Operating Agent, Redwood and the Collateral
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Agent hereby waive the Termination Event and Event of Servicer Termination
arising under Sections 9.01(a)(ii), 9.01(l), 9.02(a) and 9.02(f) of the Purchase
Agreement caused solely by the Company=s failure to comply with Sections
5.02(c), 5.02(d), 5.02(e), 5.02(f), 5.02(h), 7.07, 7.08 and 7.09 to the Purchase
Agreement for the fiscal quarter or year ended February 28, 1999. 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 Related Document or any other
Termination Event and Event of Servicer Termination now or hereafter existing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties of PSC and Pameco. Each
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of PSC and Pameco represents and warrants that:
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(a) this Amendment No. 5 has been duly authorized, executed and
delivered by each such party which is a signatory thereto;
(b) this Amendment No. 5 constitutes the legal, valid and binding
obligation of each such party which is a signatory thereto; and
(c) each of the representations and warranties of such party set forth
in the Securitization Agreements is true and correct as of the Amendment
Effective Date (as defined below) and on such Amendment Effective Date is also
made with respect to the Insurer; 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. 5 and to the Transfer Agreement as amended by this Amendment
No. 5, respectively.
SECTION 4.2 Representations and Warranties of Redwood. Redwood
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represents and warrants that:
(a) this Amendment No. 5 has been duly authorized, executed and
delivered by Redwood;
(b) this Amendment No. 5 constitutes the legal, valid and binding
obligation of Redwood; and
(c) each of the representations and warranties of Redwood set forth
in the Securitization Agreements is true and correct as of the 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. 5 and to the Transfer Agreement as amended by this Amendment
No. 5, respectively.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1 Conditions Precedent. This Amendment No. 5 shall
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become effective (the actual date of such effectiveness, the "Amendment
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Effective Date") as of the date first above written subject to satisfaction of
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the following conditions precedent in form and substance satisfactory to the
Operating Agent:
(a) Counterparts hereof shall have been duly executed and delivered by
the parties hereto;
(b) the Operating Agent, Redwood, the Seller and the Servicer shall
have executed and delivered the Fee Letter;
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(c) the Operating Agent shall have received a certificate of the
Secretary or an Assistant Secretary of each of the Seller and the Servicer,
dated as of the Amendment Effective Date, and certifying (i) the names and true
signatures of the officers authorized on its behalf to sign this Amendment No.
5, (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. 5 and the related transactions to which it is a
party, all in form and substance satisfactory to the Operating Agent. 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 Operating Agent shall have received an Officer's Certificate
from each of the Seller and the Servicer in the forms of Annexes A-1 and A-2
hereto, respectively;
(e) PSC shall have received a certificate of the Secretary or an
Assistant Secretary of the Originator, dated as of the Amendment Effective Date,
and certifying (i) the names and true signatures of the officers authorized on
its behalf to sign this Amendment No. 5, (ii) a copy of the Originator's
certificate of incorporation and by-laws, and (iii) a copy of the resolutions of
the board of directors of the Originator approving this Amendment No. 5 and the
related transactions to which it is a party. 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 executed legal opinion
from ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance satisfactory to the Operating
Agent; and
(g) PSC and Pameco shall have taken such other actions and provided
such documentation as the Operating Agent may request.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Counterparts. This Amendment No. 5 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.
SECTION 6.2 GOVERNING LAW. THIS AMENDMENT NO. 5 SHALL BE GOVERNED
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BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
SECTION 6.3 Expenses. 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. 5, including the reasonable fees and expenses of counsel to the
Operating Agent and the Collateral Agent.
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[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
5 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:
REDWOOD RECEIVABLES CORPORATION
By ______________________________
Title:
PAMECO 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:
ANNEX A-1
FORM OF OFFICER'S CERTIFICATE OF SELLER
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Pameco Securitization Corporation
Officer's Certificate
I, [Name of Officer], the duly elected [Insert Title] of Pameco
Securitization Corporation (the "Seller"), hereby certify pursuant to Section
5.1(d) of Amendment No. 5 to Securitization Agreements, dated as of the date
hereof ("Amendment No. 5"; capitalized terms used but not defined in this
Officer's Certificate having the meaning set forth in Amendment No. 5), between
the Seller, Pameco Corporation, Redwood Receivables Corporation (the
"Purchaser") 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. 5, 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 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 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 ___ day of June, 1999.
PAMECO SECURITIZATION CORPORATION
By:_______________________________
Name:
Title:
ANNEX A-2
FORM OF OFFICER'S CERTIFICATE OF SERVICER
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Pameco Corporation
Officer's Certificate
I, [Name of Officer], the duly elected [Insert Title] of Pameco
Corporation (the "Servicer"), hereby certify pursuant to Section 5.1(d) of
Amendment No. 5 to Securitization Agreements, dated as of the date hereof
("Amendment No. 5"; capitalized terms used but not defined in this Officer's
Certificate having the meaning set forth in Amendment No. 5), between Pameco
Securitization Corporation, the Servicer, Redwood Receivables Corporation (the
"Purchaser") 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. 5, 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 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 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 ___ day of June, 1999.
PAMECO CORPORATION
By:_______________________________
Name:
Title:
