Exhibit 10.19E
AMENDMENT NO. 7
TO SECURITIZATION AGREEMENTS
AMENDMENT NO. 7 TO SECURITIZATION AGREEMENTS, dated as of October 20,
1999, among PAMECO SECURITIZATION CORPORATION, a Delaware company ("PSC"),
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PAMECO CORPORATION, a Georgia company ("Pameco"), REDWOOD RECEIVABLES
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CORPORATION ("Redwood") and GENERAL ELECTRIC CAPITAL CORPORATION, a New York
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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 Annex X.
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(a) Annex X is hereby amended by deleting clause (f) of the
definition of "Eligible Receivable" and substituting therefor the following:
"(f) which complies with such other criteria and requirements as
the Operating Agent, in its sole discretion, may from time to time
specify to the Seller or, if so required by either Rating Agency, upon
the number of days of notice specified by such Rating Agency."
SECTION 2.2 Amendment to Purchase Agreement.
(a) Section 2.03(a) of the Purchase Agreement is hereby amended by:
(i) deleting the words "the third" in the first sentence
thereof and substituting therefor the words "each"; and
(ii) inserting the words "by 11:30 a.m., New York City time,"
after the first reference to the term "Investment Base Certificate".
(b) Section 2.03(b) of the Purchase Agreement is hereby amended by
deleting the words "12:00 p.m." and substituting therefor the words "11:30
a.m.".
(c) Section 2.13 of the Purchase Agreement is hereby amended by:
(i) deleting the words "11:00 a.m." and substituting therefor
the words "12:00 p.m."; and
(ii) deleting the words "following the date of such Purchase
Excess" and substituting therefor the words "on which such Purchase
Excess occurs."
(d) Section 5.01 of the Purchase Agreement is hereby amended by
adding a new clause (j) as follows:
"(j) within 7 Business Days of the Amendment Effective Date,
have at least one of its Independent Directors (as defined in Seller's
certificate of incorporation) be a representative of any of Lord
Securities Corporation, Global Securitization Corporation or other
nationally-recognized independent firm acceptable to the Operating
Agent in its sole discretion."
(e) Section 5.02 of the Purchase Agreement is hereby amended by:
(i) Deleting the first sentence thereof and substituting
therefor the following:
"The Seller shall furnish, or cause to be furnished (in the case
of Section 5.02(j) only) to the Operating Agent, and in all other
cases to the Purchaser, the Operating Agent, the Collateral Agent and
(in the case of Section 5.02(f) only) the Rating Agencies:"
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(ii) Deleting Section 5.02(a) in its entirety and substituting
therefor the following:
"(a) on each Business Day, no later than 11:30 a.m., New York
City time, an Investment Base Certificate for the previous day's
activity in the forms attached hereto as Exhibit C-1, daily aging
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reports of Receivables and a daily reconciliation of Receivables per
the daily aging report to the general ledger in the form attached
hereto as Exhibit C-2."
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(iii) Adding a new clause (j) as follows:
"(j) on each Business Day, no later than 11:30 a.m., New York
City time, the Seller shall deliver to the Operating Agent a
certificate of the Seller in the form attached hereto as Exhibit E-1,
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which certificate shall be true and accurate as of the date thereof."
(f) Section 9.01(a)(ii) of the Purchase Agreement is hereby amended
by deleting the word "five" contained in such section and substituting
therefor the word "two".
(g) Section 9.01 of the Purchase Agreement is hereby amended by
deleting the words "four days" contained in the proviso to the last
sentence in such section and substituting therefor the words "two
Business Days".
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(l) and 9.02(f) of the Purchase Agreement caused
solely by Pameco's failure to comply with the covenants set forth in Exhibit H
to the Purchase Agreement for the fiscal quarter ended August 31, 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:
(a) this Amendment No. 7 has been duly authorized, executed and
delivered by each such party which is a signatory thereto;
(b) this Amendment No. 7 constitutes the legal, valid and binding
obligation of each such party which is a signatory thereto; and
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(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. 7 and to the Transfer Agreement as amended by this Amendment
No. 7, respectively.
SECTION 4.2 Representations and Warranties of Redwood. Redwood
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represents and warrants that:
(a) this Amendment No. 7 has been duly authorized, executed and
delivered by Redwood;
(b) this Amendment No. 7 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. 7 and to the Transfer Agreement as amended by this Amendment
No. 7, respectively.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1 Conditions Precedent. This Amendment No. 7 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 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.
7, (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. 7 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;
(c) 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;
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(d) 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. 7, (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. 7 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;
(e) An initial Investment Base Certificate in the form of
Exhibit C-1, dated the Amendment Effective Date, shall have been duly executed
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and delivered by PSC;
(f) A certificate of PSC, dated the Amendment Effective Date, in the
form of Exhibit E-1 hereto shall have been duly executed and delivered by PSC;
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(g) The Operating Agent shall have received an executed reaffirmation
opinion from Xxxxxxxxxx Xxxxxxxx LLP with respect to true sale and non-
consolidation matters in form and substance satisfactory to the Operating Agent;
and
(h) PSC and Pameco shall have taken such other actions and provided
such documentation as the Operating Agent may request.
ARTICLE VI
WAIVER BY PSC AND SERVICER
Each of PSC and the Servicer hereby waives any claim, defense, demand,
action or suit of any kind or nature whatsoever against the Insurer, the
Purchaser, the Letter of Credit Providers, the Liquidity Lenders, the Liquidity
Agent, the Operating Agent and the Collateral Agent arising on or prior to the
date hereof in connection with the Purchase Agreement or the transactions
contemplated thereunder.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. This Amendment No. 7 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 7.2 GOVERNING LAW. THIS AMENDMENT NO. 7 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 7.3 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. 7, including the reasonable fees and expenses of counsel to the
Operating Agent and the Collateral Agent.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
7 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:
-0-
XXXXX X-0
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(c) of Amendment No. 7 to Securitization Agreements, dated as of the date
hereof ("Amendment No. 7"; capitalized terms used but not defined in this
Officer's Certificate having the meaning set forth in Amendment No. 7), 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. 7, 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 October, 1999.
PAMECO SECURITIZATION CORPORATION
By:_________________________
Name:
Title:
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XXXXX X-0
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(c) of
Amendment No. 7 to Securitization Agreements, dated as of the date hereof
("Amendment No. 7"; capitalized terms used but not defined in this Officer's
Certificate having the meaning set forth in Amendment No. 7), 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. 7, 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 October, 1999.
PAMECO CORPORATION
By:_________________________
Name:
Title:
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Exhibit E-1
DAILY COMPLIANCE CERTIFICATE
General Electric Capital Corporation,
as Operating Agent
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Ladies and Gentlemen:
This certificate is given pursuant to the Receivables Purchase and
Servicing Agreement dated May 1, 1996, as amended (the "Purchase Agreement"), by
and among Pameco Securitization Corporation (the "Seller"), Redwood Receivables
Corporation (the "Purchaser"), Pameco Corporation (the "Servicer") and General
Electric Capital Corporation, as operating agent for the Purchaser (in such
capacity, the "Operating Agent") and as collateral agent for the Purchaser and
the Purchaser Secured Parties (in such capacity, the "Collateral Agent").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to them in the Purchase Agreement.
The undersigned hereby certify and represent that the following statements
are true and correct on the date hereof:
(i) All representations and warranties made by the Seller, the Servicer,
and the Originator contained in the Purchase Agreement or otherwise
made in any Related Document, officer's certificate or any agreement,
instrument, certificate, document, Investment Base Certificate, or
other writing delivered to the Purchaser, the Operating Agent or the
Collateral Agent in connection therewith, are true and correct as of
the date hereof, with the same effect as though made on and as of the
date hereof (unless such representation and warranty speaks as of a
particular date, in which case it is true and correct as of such
date);
(ii) Neither the Seller, the Servicer nor the Originator has breached or
failed to comply with any of its covenants set forth in the Purchase
Agreement or the Transfer Agreement; and
(iii) No Termination Event or Incipient Event has occurred and is
continuing.
Very truly yours,
PAMECO SECURITIZATION CORPORATION,
as Seller
By:______________________________
Name:____________________________
Date:____________________________
Exhibit I
DAILY COMPLIANCE CERTIFICATE
General Electric Capital Corporation,
as Agent
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Ladies and Gentlemen:
This certificate is given pursuant to the Amended and Restated Credit
Agreement dated March 10, 1998, as amended (the "Credit Agreement"), by and
among Pameco Corporation (the "Borrower"), and General Electric Capital
Corporation, as agent for the Lenders (in such capacity, the "Agent").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to them in the Credit Agreement.
The undersigned hereby certify and represent that the following statements
are true and correct on the date hereof:
(i) All representations and warranties made by the Borrower contained in
the Credit Agreement, officer's certificate or any agreement,
instrument, certificate, document, Borrowing Base Certificate, or
other writing delivered to the Agent in connection therewith, are
true and correct as of the date hereof, with the same effect as
though made on and as of the date hereof (unless such representation
and warranty speaks as of a particular date, in which case it is true
and correct as of such date);
(ii) The Borrower has not breached or failed to comply with any of its
covenants set forth in the Credit Agreement; and
(iii) No Event of Default has occurred and is continuing.
Very truly yours,
PAMECO CORPORATION, as Borrower
By:________________________________
Name:______________________________
Date:______________________________
