AMENDMENT NO. 4 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT Dated as of December 31, 1997 THIS AMENDMENT NO. 4 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT ("Amendment") is made as of this 22nd day of November, 1999 by and among SOUTH CENTRAL...
EXHIBIT 10.28
AMENDMENT NO. 4 TO
THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
Dated as of December 31, 1997
THIS AMENDMENT NO. 4 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
("Amendment") is made as of this 22nd day of November, 1999 by and among SOUTH
CENTRAL POOL SUPPLY, INC., a Delaware corporation (the "Borrower"), the
financial institutions listed on the signature pages hereof (the "Lenders") and
LASALLE BANK NATIONAL ASSOCIATION, formerly known as LaSalle National Bank, in
its individual capacity as a Lender and in its capacity as agent ("Agent") under
that certain Third Amended and Restated Credit Agreement dated as of December
31, 1997 by and among the Borrower, the Lenders and the Agent (as amended, the
"Credit Agreement") and each of the Persons identified on the signatories hereto
as a Loan Party (individually, a "Loan Party" and collectively, the "Loan
Parties"). Capitalized terms used herein and not otherwise defined herein shall
have the meaning given to them in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrower, the Lenders and the Agent are parties to the Credit
Agreement;
WHEREAS, immediately prior to the execution and delivery hereof, at the
request of Societe Generale, Borrower repaid to Societe Generale, Societe
Generale's portion of all Loans outstanding under the Credit Agreement;
WHEREAS, after giving effect to the repayment referred to above, Societe
Generale is no longer a Lender under the Credit Agreement, the outstanding
principal balance of Term Loan equals $10,938,953.49, and the Aggregate
Revolving Loan Commitment equals $53,662,790.70;
WHEREAS, the repayment referred to above was made by Borrower with the
understanding that (a) National City Bank would become a Lender under the Credit
Agreement and (b) the amount of financing available to Borrower under the Credit
Agreement would be increased as provided herein;
WHEREAS, Societe Generale will receive its pro rata share of Applicable
Commitment Fees when said fees are due and payable on December 31, 1999, as
determined in accordance with the provisions of Section 2.15(C) of the Credit
Agreement; and WHEREAS, the Borrower, the Lenders and the Agent have agreed to
amend the Credit Agreement on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions and covenants herein contained, Borrower, Agent, and the Lenders
agree as follows:
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1. Amendments to Credit Agreement. Subject to the prior satisfaction of the
conditions set forth in Section 2 below, Agent, the Lenders, and Borrower hereby
agree to amend the Credit Agreement as follows:
(a) Section 2.1(a) of the Credit Agreement is hereby amended and restated
in its entirety, as follows:
"2.1. Term Loans. (a) Amount of Term Loans. Prior to the Effective Date,
term loans were previously made to the Borrower under the Original Credit
Agreement and the Second Restated Credit Agreement in the aggregate principal
amount of $25,000,000 (such loans being hereinafter referred to as,
individually, a "Term Loan" and, collectively, the "Term Loans"). As of November
22, 1999, the outstanding principal balance of such Term Loans (after giving
effect to the repayment of the Term Loan owing to Societe Generale) is
$10,938,953.49. Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Borrower contained herein,
National City Bank agrees to lend to Borrower, as a Term Loan, $2,311,046.51.
After giving effect to the advance referred to in the immediately preceding
sentence, which shall be funded in one drawing on November 22, 1999, the
aggregate outstanding principal amount of Term Loans shall be $13,250,000."
(b) Section 2.2 of the Credit Agreement is hereby amended by adding the
following to the end of such section:
"As of November 22, 1999, the outstanding principal balance of such loans
(after giving effect to the repayment of all Loans owing to, and the termination
of the Revolving Loan Commitment of, Societe Generale) is $27,182,267.44.
Subject to the terms and conditions of this Agreement and in reliance upon the
representations and warranties of Borrower contained herein, National City Bank
agrees to make Revolving Loans to Borrower from time to time in dollars in an
amount not to exceed $11,337,209.30. National City Bank agrees to advance to
Borrower a Revolving Loan of $3,431,686.05, which shall be funded in one drawing
on November 22, 1999. After giving effect to the advance referred to in the
immediately preceding sentence, the outstanding aggregate principal amount of
Revolving Loans shall be $19,675,000."
2. Conditions of Effectiveness. This Amendment shall not become effective
unless the Agent shall have received the following on or before November 22,
1999:
(1) duly executed originals of this Amendment from each of the Borrower,
the Agent and the Lenders;
(2) the written consent of the holders of the Subordinated Intercompany
Indebtedness, in form and substance satisfactory to Agent;
(3) a duly executed original Revolving Note and Term Note payable to
National City Bank.
2. Representations and Warranties of the Borrower. The Borrower hereby
represents and warrants as follows:
(1) This Amendment and the Credit Agreement as amended hereby, constitute
legal, valid and binding obligations of the Borrower and are enforceable against
the Borrower in accordance with their terms.
(2) Upon the effectiveness of this Amendment, the Borrower hereby reaffirms
all covenants, representations and warranties made in the Credit Agreement and
the other Loan Documents to the extent the same are not amended hereby, and
agrees that all such covenants, representations and warranties shall be deemed
to have been remade as of the effective date of this Amendment.
(3) No Default or Unmatured Default has occurred and is continuing or would
result from the execution of this amendment or the transactions contemplated
hereby.
(4) The execution, delivery and performance of this Amendment (i) has been
duly authorized by all necessary corporate action and (ii) does not conflict
with, result in a breach of, or constitute (with or without notice or lapse of
time or both) a default under any Contractual Obligation of Holdings, Borrower
or any of its Subsidiaries.
3. Reference to the Effect on the Credit Agreement.
(1) Upon the effectiveness of Section 1 hereof, on and after the date
hereof, each reference in the Credit Agreement and other Loan Documents to "this
Credit Agreement," "hereunder," "hereof," "herein" or words of like import shall
mean and be a reference to the Credit Agreement as amended hereby.
(2) Except as specifically amended above, the Credit Agreement and all
other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(3) The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power of remedy of the Agent or the Lenders,
nor constitute a waiver of any provision of the Credit Agreement or any other
documents, instruments and agreements executed and/or delivered in connection
therewith.
4. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT
OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS) OF THE STATE OF
ILLINOIS.
5. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
6. Counterparts. This Amendment may be executed by one or more of the
parties to the Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be executed by facsimile and a facsimile
transmission of a signature to the Agent or the Agent's counsel shall be
effective as though an original signature had been so delivered.
7. No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Amendment and the Credit Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Amendment and the Credit Agreement as hereby amended shall be construed as if
drafted jointly by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Amendment or the Credit Agreement.
8. Reaffirmation. Each of the Loan Parties as debtor, grantor, pledgor,
guarantor, assignor, or in other any other similar capacity in which such Loan
Party grants liens or security interests in its property or otherwise acts as
accommodation party or guarantor, as the case may be, hereby (i) ratifies and
reaffirms all of its payment and performance obligations, contingent or
otherwise, under each of the Loan Documents to which it is a party (after giving
effect hereto) and (ii) to the extent such Loan Party granted liens on or
security interests in any of its property pursuant to any such Loan Document as
security for or otherwise guaranteed the Borrower's Obligations under or with
respect to the Loan Documents, ratifies and reaffirms such guarantee and grant
of security interests and liens and confirms and agrees that such security
interests and liens hereafter secure all of the Obligations as amended hereby.
Each of the Loan Parties hereby consents to this Amendment and acknowledges that
each of the Loan Documents remains in full force and effect and is hereby
ratified and reaffirmed. The execution of this Amendment shall not operate as a
waiver of any right, power or remedy of the Agent or Lenders, constitute a
waiver of any provision of any of the Loan Documents or serve to effect a
novation of the Obligations.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their duly authorized officers as of the day and
year first above written.
BORROWER:
SOUTH CENTRAL POOL SUPPLY, INC.
By:/S/
Title:
AGENT AND LENDERS:
LASALLE BANK NATIONAL ASSOCIATION, as Agent
and as a Lender
By:/S/
Title:
BANK ONE, N.A., formerly known as THE
FIRST NATIONAL BANK OF CHICAGO, as
a Lender
By:/S/
Title:
HIBERNIA NATIONAL BANK, as a Lender
By:/S/
Title:
NATIONAL CITY BANK, as a Lender
By:/S/
Title:
0000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxxxx 0000
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx
Telecopy: (000) 000-0000
LOAN PARTIES:
SCP POOL CORPORATION
By:/S/
Title:
ALLIANCE PACKAGING INC.
By:/S/
Title:
SCP INTERNATIONAL INC.
By:/S/
Title:
