EXHIBIT 10.19B
EXECUTION COPY
AMENDMENT NO. 4
TO SECURITIZATION AGREEMENTS
AMENDMENT NO. 4, dated as of October 16, 1998, among PAMECO
SECURITIZATION CORPORATION, a Delaware company ("PSC"), PAMECO
CORPORATION, a Georgia company ("Pameco"), REDWOOD RECEIVABLES
CORPORATION ("Redwood") and GENERAL ELECTRIC CAPITAL CORPORATION, a
New York company ("GECC").
WHEREAS, Pameco, as originator (in such capacity, the
"Originator") and PSC are parties to a Receivables Transfer Agreement,
dated as of April 29, 1996 (as heretofore amended, supplemented or
otherwise modified, the "Transfer Agreement");
WHEREAS, PSC, as seller (in such capacity, the "Seller"),
Redwood, as purchaser (in such capacity, the "Purchaser"), GECC, as
operating agent (in such capacity, the "Operating Agent") and
collateral agent (in such capacity, the "Collateral Agent") and
Pameco, as servicer (in such capacity, the "Servicer") 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");
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 the Purchase Agreement, the
"Securitization Agreements"); and
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 otherwise defined, are used as defined in the Purchase
Agreement.
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ARTICLE II
AMENDMENTS TO TRANSFER AGREEMENT
SECTION 2.1 AMENDMENT TO SECTION 7.04. Section 7.04(a) of the
Transfer Agreement is hereby amended by deleting therefrom the amount
"$60,000,000" as it appears therein and substituting therefor the
amount "$100,000,000".
SECTION 2.2 NEW PROMISSORY NOTE. On the effective date
of this Amendment No. 4, Pameco shall execute and delivery to PSC a
Promissory Note (the "New Promissory Note") substantially in the form
of Annex A hereto, in substitution and exchange for, but not in
payment of, that certain promissory note of Pameco dated April 7, 1998
made in favor of PSC in the principal amount of $60,000,000.
ARTICLE III
AMENDMENTS TO PURCHASE AGREEMENT
SECTION 3.1 AMENDMENT TO SECTION 4.01. Section 4.01 of the
Purchase Agreement is hereby amended by inserting the following new
paragraph 4.01(dd) at the end thereof:
"(dd) The Seller has completed a Year 2000 Assessment and
has prepared a Year 2000 Corrective Plan, and on or before June
30, 1999, the Seller shall complete Year 2000 Corrective Actions
and Year 2000 Implementation Testing and shall have eliminated
all Year 2000 Mission Critical Problems except where the failure
to eliminate the same could not reasonably be expected to have a
Material Adverse Effect."
SECTION 3.2 AMENDMENT TO SECTION 4.02. Section 4.02 of the
Purchase Agreement is hereby amended by inserting the following new
paragraph 4.02(l) at the end thereof:
"(l) The Servicer has completed a Year 2000 Assessment and
has prepared a Year 2000 Corrective Plan, and on or before June
30, 1999, the Servicer shall complete Year 2000 Corrective
Actions and Year 2000 Implementation Testing and shall have
eliminated all Year 2000 Mission Critical Problems except where
the failure to eliminate the same could not reasonably be
expected to have a Material Adverse Effect."
SECTION 3.3 AMENDMENT TO SECTION 5.01. Section 5.01 of the
Purchase Agreement is hereby amended by inserting the following new
paragraph 5.01(j) at the end thereof:
"(j) on or before June 30, 1999, the Seller shall complete
Year 2000 Corrective Actions and Year 2000 Implementation Testing
and shall eliminate all Year 2000 Mission Critical Problems,
except where the failure to eliminate the same could not
reasonably be expected to have a Material Adverse Effect."
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SECTION 3.4 AMENDMENT TO SECTION 6.01(c). Section
6.01(c) of the Purchase Agreement is hereby amended by inserting just
after the final period the following: "The Seller and the Purchaser
agree that prior to the Facility Termination Date, the Operating
Agent, and from and after the Facility Termination Date, the
Collateral Agent, shall have exclusive dominion and control of the
Retention Account and all monies, instruments and other property from
time to time on deposit therein".
SECTION 3.5 AMENDMENT TO SECTION 6.02(a)(iii). Section
6.02(a)(iii) of the Purchase Agreement is hereby amended by inserting
the words "and Insurance Draws" after the words "Seller LOC Draws".
SECTION 3.6 AMENDMENT TO SECTION 6.02((a)(vi). Section
6.02(a)(vi) of the Purchase Agreement is hereby amended by inserting
the words "and Additional Amounts" after the words "Indemnified
Amounts".
SECTION 3.7 AMENDMENT TO SECTION 6.02(a)(viii). Section
6.02(a)(viii) of the Purchase Agreement is hereby amended by inserting
just before the final period the words "or that the Seller elects to
pay pursuant to Section 8.06(b) hereof".
SECTION 3.8 AMENDMENT TO SECTION 6.03(c)(ii). Section
6.03(c)(ii) of the Purchase Agreement is hereby amended by deleting
the parenthetical in the second line and inserting in its place the
following parenthetical: (or, in the case of Indemnified Amounts or
Additional Amounts for the account of the applicable Indemnified Party
or Affected Party, respectively).
SECTION 3.9 AMENDMENT TO SECTION 6.05. Section 6.05 of
the Purchase Agreement is hereby amended by deleting it in its
entirety and substituting therefor the following:
"Section 6.05 LIQUIDATION SETTLEMENT PROCEDURES. On each
Business Day on and after the Facility Termination Date, the
Collateral Agent shall:
(a) transfer all amounts then on deposit in the
Retention Account to the Collection Account;
(b) transfer all amounts in the Collection Account in
the following priority:
(i) to the Deferred Purchase Price Sub-Account, an
amount equal to all Deferred Purchase Price
Collections; and
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(ii) to the Capital Investment Sub-Account, the
balance;
(c) transfer all amounts in the Deferred Purchase Price
Sub-Account (after making the transfers required by Section
6.05(b)), in the following priority:
(i) if an Event of Termination has occurred and a
Successor Servicer has been appointed, to the Successor
Servicer in an amount equal to its accrued and unpaid
Successor Servicing Fees and Expenses;
(ii) to the Collateral Account for the account of
the Purchaser, in an amount equal to, on any such
Business Day on which the Capital Investment is being
maintained through the issuance of Commercial Paper (to
the extent such Capital Investment exceeds Transaction
Liquidity Loans then outstanding), accrued and unpaid
CP Interest through and including the date of maturity
of the Commercial Paper maintaining such Capital
Investment;
(iii) to the Insurer, any unpaid premiums then
owing the Insurer under the Insurance Agreement;
(iv) if the Insurance Draws are then outstanding,
to the Insurer, an amount equal to accrued and unpaid
interest on the Insurance Draws to the extent amounts
on deposit in the Deferred Purchase Price Sub-Account
are allocated to this subparagraph (iv) pursuant to the
terms of the Insurance Agreement;
(v) if there are Transaction Liquidity Loans then
outstanding, to the Transaction Liquidity Agent on
behalf of the Transaction Liquidity Providers, in an
amount equal to accrued and unpaid interest on the
Transaction Liquidity Loans;
(vi) to the Capital Investment Sub-Account:
(A) an amount equal to the Dilution Funded
Amount; and
(B) if there are Transaction Liquidity Loans
outstanding or Capital Investment exceeds the
Transaction Liquidity Loans then outstanding, all
amounts remaining in the Deferred Purchase Price
Sub-Account, if any;
(vii) to the Letter of Credit Agent, if there are
any outstanding LOC Draws in respect of the Seller, in
an amount equal to accrued and unpaid interest on such
outstanding LOC Draws;
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(viii) to the Collateral Account, an amount equal
to (A) accrued unpaid Daily Yield minus (B) the sum of
(i) amounts paid pursuant to Sections 6.05(c)(ii) and
6.05(c)(iv), (ii) amounts paid pursuant to Section
6.05(c)(v), and (iii) amounts paid under Section
6.05(c)(vii);
(ix) if an Event of Servicer Termination has not
occurred, to the Servicer in an amount equal to its
accrued and unpaid Servicing Fee;
(x) upon payment in full of all amounts set forth
in clauses (d)(i)-(d)(viii) below, to an account
previously designated by the Seller, in partial payment
of the Deferred Purchase Price, the balance, if any;
and
(d) transfer all amounts in the Capital Investment Sub-
Account, in the following priority:
(i) to the Collateral Account for the account of
the Purchaser, in an amount equal to,
(A) on any such Business Day on which Capital
Investment is being maintained through the
issuance of Commercial Paper (to the extent such
Capital Investment exceeds Transaction Liquidity
Loans then outstanding), accrued and unpaid CP
Interest through and including such date, to the
extent not paid pursuant to Sections 6.05(c)(ii)
and 6.05(c)(viii); and
(B) on any such Business Day on which Capital
Investment is being maintained through the
issuance of Commercial Paper (to the extent such
Capital Investment exceeds Transaction Liquidity
Loans then outstanding), the principal of all
Capital Investment in excess of such Transaction
Liquidity Loans;
(ii) to the Insurer, to the extent amounts on
deposit in the Capital Investment Sub-Account are
allocated to this subparagraph (d)(ii) pursuant to the
terms of the Insurance Agreement, unpaid premiums of
the Insurer under the Insurance Agreement to the extent
not paid under Section 6.05(c)(iii);
(iii) if Insurance Draws are then outstanding, to
the Insurer, to the extent amounts on deposit in the
Capital Investment Sub-Account are allocated to this
subparagraph (d)(iii) pursuant to the terms of the
Insurance Agreement, an amount equal to:
(A) accrued and unpaid interest on the
Insurance Draws to the extent not paid under
Section 6.05(c)(iv); and
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(B) the outstanding amount of Insurance
Draws; and
(C) any other amounts owing to the Insurer
pursuant to the Insurance Policy or the Insurance
Agreement, including, without limitation, any fees
and expenses of the Insurer other than Additional
Amounts and Indemnified Amounts;
(iv) if there are Transaction Liquidity Loans
outstanding, to the Transaction Liquidity Agent on
behalf of the Transaction Liquidity Providers, in an
amount equal to:
(A) accrued and unpaid interest on the
Transaction Liquidity Loans to the extent not paid
pursuant to Section 6.05(c)(v);
(B) the principal of outstanding Transaction
Liquidity Loans; and
(C) any other amounts, including any fees,
owing to the Transaction Liquidity Agent or
Transaction Liquidity Providers in connection with
the Transaction Liquidity Loans other than
Additional Amounts and Indemnified Amounts;
(v) to the Collateral Agent for the account of the
Purchaser, in an amount equal to:
(A) all Additional Amounts incurred and
payable to any Affected Party; and
(B) all Indemnified Amounts incurred and
payable to any Indemnified Party;
(vi) to the Letter of Credit Agent, if there are
any outstanding LOC Draws in respect of the Seller, in
an amount equal to:
(A) accrued and unpaid interest on such
outstanding LOC Draws to the extent not paid
pursuant to Section 6.05(c)(vii);
(B) the principal of such outstanding LOC
Draws; and
(C) any other amounts, including fees, owing
to the Letter of Credit Agent in connection with
such outstanding LOC Draws; and
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(vii) to the Collateral Account, an amount equal
to (A) accrued and unpaid Daily Yield minus (B) the sum
of (i) amounts paid pursuant to Sections 6.05(c)(ii),
6.05(c)(iv), 6.05(c)(v), 6.05(c)(vii), 6.05(c)(viii),
6.05(d)(i)(A), 6.05(d)(iii)(A), 6.05(d)(iv)(A) and
6.05(d)(vi)(A);
(viii) if an Event of Servicer Termination has not
occurred, to the Servicer in an amount equal to its
accrued and unpaid Servicer Fee; and
(ix) upon payment in full of all amounts set forth
in clauses (d)(i)-(d)(viii) above, to an account
previously designated by the Seller, the balance, if
any.
(e) on the Facility Termination Date and after any date
thereafter, on each such date by no later than 11:00 a.m.
the Operating Agent shall transfer all amounts then on
deposit in the Retention Account to the Collateral Account."
SECTION 3.10 AMENDMENT TO SECTION 7.06. Section 7.06 of the
Purchase Agreement is hereby amended by inserting the following new
paragraph 7.06(j) at the end thereof:
"(j) on or before June 30, 1999, the Servicer shall complete
Year 2000 Corrective Actions and Year 2000 Implementation Testing
and shall eliminate all Year 2000 Mission Critical Problems,
except where the failure to eliminate the same could not
reasonably be expected to have a Material Adverse Effect."
SECTION 3.11 AMENDMENT TO SECTION 12.01(a). Section
12.01(a) of the Purchase Agreement is hereby amended by inserting the
words "the Insurer," after the words "Liquidity Provider," in the
third line.
SECTION 3.12 AMENDMENT TO SCHEDULE 3. Schedule 3 to the
Purchase Agreement is amended by deleting therefrom the definitions of
the terms "Daily Margin" and "Daily Default Margin" and by
substituting the following new definitions of such terms in lieu
thereof:
"Daily Margin" and "Daily Default Margin" mean the following
percentages divided by 360:
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Daily Margin Daily Default Margin Interest Coverage Ratio
------------ -------------------- -----------------------
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
The term "Interest Coverage Ratio" shall have the meaning
ascribed to such term in the Credit Agreement.
ARTICLE IV
AMENDMENTS TO ANNEX X
Section 4.1 AMENDMENTS TO ANNEX X. Annex X is hereby
amended by:
(a) inserting in the definition of "Affected Parties"
the words ", the Insurer" after the words "any of the Liquidity
Lenders,".
(b) deleting from the definition of "Fee Letter" the
date "April 7, 1998" and substituting therefor the date "October
16, 1998";
(c) deleting from the definition of "Final Purchase
Date" the date "March 10, 2003" and substituting therefor the
date "August 6, 2003";
(d) inserting the following new definitions in the
appropriate alphabetical order:
"Insurance Agreement" means the Insurance Agreement, dated
as of October 16, 1998 among the Insurer, Redwood and GECC, as
Operating Agent and as Collateral Agent and Insured Party.
"Insurance Draws" means any payment made under the Insurance
Policy.
"Insurance Policy" means the Excess of Loss Insurance Policy
issued by the Insurer under the Insurance Agreement.
"Insurer" means Asset Guaranty Insurance Company and its
successors and permitted assigns, as issuer of the Insurance
Policy.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or condition
(financial or otherwise) of the Seller or the Servicer, (b) the
ability of the Seller or the Servicer to perform their respective
obligations under the Purchase Agreement in accordance with its
terms or (c) the Collateral or the Collateral Agent's liens on
the Collateral or the priority of any such lien on the
Collateral, other than, in each case, immaterial Collateral."
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"Third Party Interactives" shall mean all Persons with whom
the Seller or the Servicer exchanges data electronically in the
ordinary course of business, including, without limitation,
customers, suppliers, third-party vendors, subcontractors,
processors, converters, shippers and warehousemen.
"Year 2000 Assessment" shall mean a comprehensive written
assessment of the nature and extent of the Seller's and the
Servicer's Year 2000 Mission Critical Problems and Year 2000
Mission Critical Date-Sensitive Systems/Components, including,
without limitation, Year 2000 Mission Critical Problems regarding
data exchanges with Third Party Interactives.
"Year 2000 Corrective Actions" shall mean, as to the Seller
and the Servicer, all actions necessary to eliminate such
Person's Year 2000 Mission Critical Problems, including, without
limitation, computer code enhancements and revisions, upgrades
and replacements of Year 2000 Mission Critical Date-Sensitive
Systems/Components, and coordination of such enhancements,
revisions, upgrades and replacements with Third Party
Interactives.
"Year 2000 Corrective Plan"shall mean, with respect to the
Seller and the Servicer, a comprehensive plan to eliminate such
Person's Year 2000 Mission Critical Problems on or before June
30, 1999, including, without limitation, (i) computer code
enhancements or revisions, (ii) upgrades or replacements of Year
2000 Mission Critical Date-Sensitive Systems/Components, (iii)
test and validation procedures, (iv) an implementation time line
and budget and (v) designation of specific employees who will be
responsible for planning, coordinating and implementing each
phase or subpart of the Year 2000 Corrective Plan.
"Year 2000 Implementation Testing" shall mean, as to the
Seller and the Servicer, (i) the performance of test and
validation procedures regarding Year 2000 Corrective Actions on a
unit basis and on a systemwide basis, (ii) the performance of
test and validation procedures regarding data exchanges among the
Seller's and the Servicer's Year 2000 Mission Critical Date-
Sensitive Systems/Components and data exchanges with Third Party
Interactives, and (iii) the design and implementation of
additional Corrective Actions, the need for which has been
demonstrated by test and validation procedures.
"Year 2000 Mission Critical Date-Sensitive System/Component"
shall mean, as to any Person, any mission critical system
software, network software, applications software, data base,
computer file, embedded microchip, firmware or hardware that
accepts, creates, manipulates, sorts, sequences, calculates,
compares or outputs calendar-related data accurately; such
systems and components shall include, without limitation,
mainframe computers, file server/client systems, computer
workstations, routers, hubs, other network-related hardware, and
other computer-related software, firmware or hardware and
information processing and delivery systems of any kind and
telecommunications systems and other communications processors,
security systems, alarms, elevators and HVAC systems.
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"Year 2000 Mission Critical Problems" shall mean, with
respect to the Seller and the Servicer, limitations on the
capacity or readiness of the Seller's and the Servicer's Year
2000 Mission Critical Date-Sensitive Systems/Components to
accurately accept, create, manipulate, sort, sequence, calculate,
compare or output calendar date information with respect to
calendar year 1999 or any subsequent calendar year beginning on
or after January 1, 2000 (including leap year computations),
including, without limitation, exchanges of information amount
Year 2000 Mission Critical Date-Sensitive Systems/Components of
the Seller and the Servicer and exchanges of information among
the Seller and the Servicer and Year 2000 Mission Critical Date-
Sensitive Systems/Components of Third Party Interactives and
functionality of peripheral interfaces, firmware, and embedded
microchips.
(e) deleting the definition of "Investment Base" in its
entirety and substituting therefor the following definition:
"Investment Base" means, for any date, as disclosed in the
most recently submitted Investment Base Certificate, an amount
equal to the Outstanding Balance of Transferred Receivables that
are Eligible Receivables minus Reserves in respect of such
Eligible Receivables, plus for purposes of determining "Funding
Base" under the Collateral Agent Agreement, at any time after the
Facility Termination Date, so long as the Insurance Policy has
not been terminated, the aggregate amount that would be available
for drawing under the Insurance Policy if such date were the
"Draw Date" thereunder, in each case as disclosed in the most
recently submitted Investment Base Certificate or as otherwise
determined by the Purchaser, the Operating Agent or the
Collateral Agent based on Seller Collateral information available
to any of them, including any information obtained from any audit
or from any other reports with respect to the Seller Collateral,
which determination shall be final, binding and conclusive on all
parties to the Purchase Agreement."
(f) deleting from the definition of "Maximum Purchase
Limit" the amount "$60,000,000" and substituting therefor the
amount "$100,000,000"; and
(g) inserting in the definition of "Purchaser Secured
Parties" the words "the Collateral Agent and the Insurer" after
the words "Letter of Credit Providers".
(h) inserting in the definition of "Related Documents"
the words "the Insurance Policy and the Insurance Agreement"
after the words "the Assignment".
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(i) inserting at the end of the definition of "Three
Month Aged Receivable Ratio" the following: "For purposes of the
Transfer Agreement, Purchase Agreement and Liquidity Loan
Agreement, this ratio shall be based on a twelve month period
instead of a three month period."
ARTICLE V
AMENDMENTS TO LIQUIDITY AGREEMENT, ETC.
SECTION 5.1. Amendment to Section 1.01. The definition of
"Liquidity Commitment" appearing in Section 1.01 of the Liquidity
Agreement is amended by deleting the number "$61,800,000" appearing
therein and by inserting, in lieu thereof, the number "$103,000,000".
SECTION 5.2 AMENDMENT TO FORM OF LIQUIDITY NOTES.
Exhibit C to the Liquidity Agreement is hereby amended by deleting
such Exhibit in its entirety and by inserting, in lieu thereof, a new
Exhibit C in the form of Annex B hereto.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1 REPRESENTATIONS AND WARRANTIES OF PSC AND
PAMECO. Each of PSC and Pameco represents and warrants that:
(a each of this Amendment No. 4 and the New Promissory
Note has been duly authorized, executed and delivered by each such
party which is a signatory thereto;
(b each of this Amendment No. 4 and the New Promissory
Note constitutes the legal, valid and binding obligation of each such
party which is a signatory thereto;
(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 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.
4 and to the Transfer Agreement as amended by this Amendment No. 4,
respectively, and references to the Pameco Note shall be deemed
references to the New Promissory Note.
SECTION 6.2 REPRESENTATIONS AND WARRANTIES OF REDWOOD.
Redwood represents and warrants that:
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(a) this Amendment No. 4 has been duly authorized, executed
and delivered by Redwood;
(b) this Amendment No. 4 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 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. 4 and to the
Transfer Agreement as amended by this Amendment No. 4, respectively,
and references to the Pameco Note shall be deemed references to the
New Promissory Note.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1 CONDITIONS PRECEDENT. This Amendment No. 4
shall become effective (the actual date of such effectiveness, the
"Amendment Effective Date") as of the date first above written subject
to satisfaction 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 Promissory Note,
executed and delivered by a duly authorized officer of Pameco;
(c) the Operating Agent, Redwood, the Seller and the
Servicer shall have executed and delivered the Fee Letter dated
October 16, 1998;
(d) the Purchaser, Operating Agent and Collateral Agent
shall have received the executed legal opinion (including confirmation
of true sale opinion) of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel to the
Seller and the Servicer, 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 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. 4, (ii) a copy of the 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. 4 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;
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(f) the Operating Agent shall have received an Officer's
Certificate from each of the Seller and the Servicer in the forms of
Annexes C-1 and C-2 hereto, respectively;
(g) 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. 4 and
the New Promissory Note, (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.
4 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;
(h) the Operating Agent shall have received rating agency
letters from ▇▇▇▇▇'▇ Investors Service and Standard & Poor's Rating
Services affirming the rating of the Redwood commercial paper as
"Prime-1" and "A-1+", respectively, after giving effect to this
Amendment No. 4 and consummation of the transactions contemplated
hereby; and
(i) PSC and Pameco shall have taken such other actions and
provided such documentation as the Operating Agent may request.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 COUNTERPARTS. This Amendment No. 4 may be
executed on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the
same instrument.
SECTION 8.2 GOVERNING LAW. THIS AMENDMENT NO. 4 SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.
SECTION 8.3 EXPENSES. Pameco agrees to pay and reimburse
the 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. 4, 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. 4 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 /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: VP
REDWOOD RECEIVABLES CORPORATION
By J [unreadable]
Title: Assistant Secretary
PAMECO CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇. Kallgran
Title: VP, CFO
GENERAL ELECTRIC CAPITAL
CORPORATION, as Operating Agent and
Collateral Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION, as Liquidity Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION, as Letter of Credit Agent and
Letter of Credit Provider
By_______________________________
Title:
ANNEX A
[Form of]
PAMECO NOTE
$100,000,000.00 May 1, 1996
Amended and Restated
October 16, 1998
FOR VALUE RECEIVED PAMECO CORPORATION, a Georgia corporation
("Pameco") hereby promises to pay to PAMECO SECURITIZATION CORPORATION
(the "Lender"), for its account, the principal sum of ONE HUNDRED
MILLION DOLLARS ($100,000,000) (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 the date hereof by
and among Pameco and the 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 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.
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.
Very truly yours,
PAMECO CORPORATION
By:_________________________
Name:
Title:
ANNEX B
[NEW FORM OF LIQUIDITY NOTE]
PROMISSORY NOTE
Redwood Receivables Corporation
$103,000,000.00 May 1, 1996
Amended and Restated
October 16, 1998
FOR VALUE RECEIVED, REDWOOD RECEIVABLES CORPORATION, a
Delaware corporation (the "Company"), promises to pay to GENERAL
ELECTRIC CAPITAL CORPORATION (the "Liquidity Lender"), or registered
assigns, the principal sum of ONE HUNDRED THREE MILLION DOLLARS
($103,000,000) or, if less, the unpaid principal amount of the
aggregate loans ("Liquidity Loans") made by the Liquidity Lender to
the Company pursuant to the Liquidity Loan Agreement, dated as of
April 29, 1996 (as amended, the "Liquidity Loan Agreement"), between
the Company, the Liquidity Lender and General Electric Capital
Corporation as agent for the Liquidity Lender (as agent, the
"Liquidity Agent") on the dates specified in Sections 2.02(c), 4.02
and 4.03 of the Liquidity Loan Agreement, and to pay interest on the
unpaid principal amount of the Note outstanding from time to time at
the Liquidity Interest Rate provided in the Liquidity Loan Agreement
and on the dates specified in Section 4.01 of the Liquidity Loan
Agreement. Capitalized terms used in this Note and not defined herein
have the respective meanings assigned to them in the Liquidity Loan
Agreement.
Notwithstanding any other provisions contained in this Note,
if at any time the rate of interest payable by the Company under this
Note, when combined with any and all other charges provided for in
this Note, in the Liquidity Loan 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 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, the Company shall continue to pay interest
under this Note at the Maximum Lawful Rate until such time as the
total interest paid by the Company 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 Liquidity Lender under this Note exceed the amount
which the Liquidity 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.
Payments of the principal of, premium, if any, and interest
on this Note shall be made by the Company to the holder hereof by wire
transfer of immediately available funds by 3:00 p.m. New York City
time, in the manner and at the address specified for such purpose as
provided in Section 4.04 of the Liquidity Loan Agreement, or in such
manner or at such other address as the holder of this Note shall have
specified in writing to the Company for such purpose, without the
presentation or surrender of this Note or the making of any notation
on this Note.
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 in such locations and interest (calculated at
the Interest Rate in effect for the period then ending) shall be
payable on the principal so extended.
The Company expressly waives presentment, demand, diligence,
protest and all notices of any kind whatsoever with respect to this
Note.
The holder hereof may, subject to the provisions of Article
IX of the Liquidity Loan Agreement, sell, assign, transfer, negotiate,
grant participations in or otherwise dispose of all or any portion of
this Note and the indebtedness evidenced by this Note.
This Note is secured by (i) the security interests assigned
and granted to General Electric Capital Corporation, as collateral
agent on behalf of, among others, the Liquidity Lender and the
Liquidity Agent (in such capacity, the "Collateral Agent") from time
to time pursuant to Purchase Agreement, and (ii) the security
interests granted to the Collateral Agent pursuant to the Collateral
Agent Agreement. The holder of this Note is entitled to the benefits
of the Purchase Agreement and the Collateral Agent Agreement and may
enforce the agreements of the Company contained in such agreements and
exercise the remedies provided for by, or otherwise available in
respect of, such agreements, all in accordance with the terms of such
agreements. It an Event of Default shall occur and be continuing, the
unpaid balance of the principal of this Note, together with accrued
interest, may be declared and become due and payable in the manner
with the effect provided in the Liquidity Loan Agreement and the
Collateral Agent Agreement.
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.
3
IN WITNESS WHEREOF, the Company has caused this Note to be
signed and delivered by its duly authorized officer as of the date set
forth above.
Very truly yours,
REDWOOD RECEIVABLES CORPORATION
By:____________________________
Name:
Title: