THIRD AMENDMENT
THIRD
AMENDMENT
THIS
THIRD AMENDMENT (this “Amendment”),
is
made and entered into as of this 9th
day of
February, 2007, with an effective date as set forth in Section
3
hereof,
by and among POOL
CORPORATION (formerly known as SCP POOL CORPORATION), a Delaware corporation
(the “US
Borrower”),
SCP
DISTRIBUTORS INC., a company organized under the laws of Ontario (the
“Canadian
Borrower”
and,
together with the US Borrower, the “Borrowers”),
the
lenders who are or may become a party to this Agreement (collectively, the
“Lenders”),
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as
Administrative Agent for the Lenders, WACHOVIA CAPITAL FINANCE CORPORATION
(CANADA) (formerly known as Congress Financial Corporation (Canada)), as
Canadian Dollar Lender, JPMORGAN CHASE BANK, as Syndication Agent, CAPITAL
ONE,
NATIONAL ASSOCIATION (successor-by-merger to HIBERNIA NATIONAL BANK), as
Documentation Agent and XXXXX FARGO BANK NATIONAL ASSOCIATION, as Documentation
Agent.
Statement
of Purpose
A. The
Lenders agreed to extend certain credit facilities to the Borrowers pursuant
to
the Credit Agreement dated as of November 2, 2004 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”)
by and
among the Borrowers, the Lenders, the Administrative Agent, the Syndication
Agent and the Documentation Agents;
B. The
US
Borrower desires to enter into a transaction where the US Borrower will issue
and sell $100,000,000 senior unsecured notes pursuant to a note purchase
agreement (the “Proposed
Transaction”);
and
C. Subject
to the terms and conditions set forth in this Amendment, the Borrowers desire
to
amend or modify certain provisions of the Credit Agreement in certain respects
in connection with the Proposed Transaction as more particularly set forth
herein and to make certain other amendments and modifications as more
particularly set forth herein.
NOW
THEREFORE, for good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. All
capitalized, undefined terms used in this Amendment shall have the meanings
assigned thereto in the Credit Agreement.
SECTION 2. Amendment. The
following sections of the Credit Agreement are modified as follows:
A. Section
1.1
of the
Credit Agreement (“Definitions”) is hereby amended by amending and restating the
definitions of “Canadian Dollar Commitment” and “Letters of Credit” as
follows:
““Canadian
Dollar Commitment”
means
the lesser of (a) Ten Million Dollars ($10,000,000) and (b) the Revolving Credit
Commitment.”
““Letters
of Credit”
means
the collective reference to the letters of credit issued pursuant to
Section
3.1
and the
Existing Letters of Credit.”
B. Section
1.1
of the
Credit Agreement (“Definitions”) is hereby amended by adding the following new
definitions in appropriate alphabetical order:
““February
2007 Note Purchase Agreement”
means
that certain Note Purchase Agreement dated as of February __, 2007 pursuant
to
which the US Borrower will issue the February 2007 Notes, as such agreement
may
be amended, restated, supplemented or otherwise modified, in each case, in
accordance with Section
10.10
of this
Agreement.”
““February
2007 Notes”
means
the senior unsecured notes issued by the US Borrower pursuant to the February
2007 Note Purchase Agreement in an initial aggregate principal amount of
$100,000,000.”
C. Section
3.1
of the
Credit Agreement (“L/C Commitment”) is hereby amended by adding the words “or a
trade letter of credit” after the words “standby letter of credit” in clause
(ii) of the second sentence of such Section.
D. Section
10.1
of the
Credit Agreement (“Limitations on Indebtedness”) is hereby amended
by:
(1) adding
the words “or subsection (q)” after the words “subsections (a) through (e)” in
subsection (g);
(2) moving
the word “and” from the end of subsection (o) to the end of subsection (p); and
(3) adding
a
new subsection (q) as follows:
“(q) (i)
Indebtedness in connection with the February 2007 Notes upon terms and
conditions reasonably satisfactory to the Administrative Agent and (ii) any
additional unsecured Indebtedness issued under, or by a supplement to, the
February 2007 Note Purchase Agreement or any similar note purchase agreement
or
other debt instrument; provided
that
such additional unsecured Indebtedness shall be on terms and conditions that
are, taken as a whole, (A) consistent with the then-current market terms and
conditions of such type of unsecured debt (as reasonably determined in good
faith by the Board of Directors of the US Borrower) and (B) no less favorable
to
the Lenders than the terms of the February 2007 Notes (as reasonably determined
by the Administrative Agent); provided
further
that with respect to any Indebtedness incurred pursuant to clause (ii), (1)
no
Default or Event of Default exists and is continuing or would be caused by
the
issuance thereof, (2) the Administrative Agent shall have received satisfactory
written evidence that the US Borrower would be in compliance with all covenants
in this Agreement on a pro forma
basis
after giving effect to the issuance thereof, and (3) the maturity date of such
senior Indebtedness shall
be
no earlier than the Indebtedness (if any) being refinanced and in any event
shall be at
least
six (6) months after each of the Revolving Credit Maturity Date and the Term
Loan Maturity Date;”
E. Section
10.3 of the Credit Agreement (“Limitations on Loans, Advances, Investments and
Acquisitions”) is hereby amended by deleting subsection (i) in its entirety and
replacing it with the following:
“(i) the
creation of new Foreign Subsidiaries or additional investments in existing
Foreign Subsidiaries, the investment in which,
together with the Permitted Acquisition Consideration payable in connection
with
all Permitted Foreign Acquisitions and the total amount of any transactions
permitted under Sections 10.1(i)
and
10.5(f),
does
not exceed $75,000,000 in the aggregate during the term of this Agreement;”
F. Section
10.4 of the Credit Agreement (“Limitations on Mergers and Liquidation”) is
hereby amended by deleting subsection (e) in its entirety and replacing it
with
the following:
“(e) the
dissolution of SCP Northpark LLC, SCP Services LP and Cypress Hong Kong,
Ltd.”
G. Section
10.5 of the Credit Agreement (“Limitations on Sale of Assets”) is hereby amended
by deleting subsection (c) in its entirety and replacing it with the
following:
“(c) the
transfer of assets pursuant to Section 10.4;”
H. Section
10.6 of the Credit Agreement (“Limitations on Dividends and Distributions”) is
hereby amended by deleting subsection (c) in its entirety and replacing it
with
the following:
“(c) any
Subsidiary may declare and pay dividends of any type (cash or non-cash) to
the
US Borrower or any other Wholly-Owned Subsidiary, provided
that if
the Subsidiary paying the dividend is a Subsidiary Guarantor then the recipient
of the dividend must be either the US Borrower or another Subsidiary
Guarantor;”
I. Section
10.10
of the
Credit Agreement “Amendments; Payments and Prepayments of Subordinated
Indebtedness” is hereby amended by:
(1) deleting
the title of such Section in its entirety and replacing it with “Amendments,
Payments and Prepayments of Certain Indebtedness”;
(2) adding
the words “or any Indebtedness permitted pursuant to Section
10.1(q)
of this
Agreement” before the period at the end of subsection (a); and
(3) amending
and restating subsection (b) in its entirety as follows:
“(b) Cancel,
forgive, make any payment or prepayment on, or redeem or acquire for value
(including, without limitation, (i) by way of depositing with any trustee with
respect thereto money or securities before due for the purpose of paying when
due and (ii) at the maturity thereof) any Subordinated Indebtedness or any
Indebtedness permitted pursuant to Section
10.1(q)
of this
Agreement, except (x) refinancings, refundings, renewals, extensions or exchange
of any such Indebtedness to the extent permitted by Section
10.1(j)
(in the
case of Subordinated Indebtedness) or Section
10.1(q)
(in the
case of Indebtedness permitted by Section
10.1(q))
or (y)
so long as no Default or Event of Default has occurred or would result therefrom
regularly scheduled payments of interest on Indebtedness issued pursuant to
Section
10.1(q).”
SECTION 3. Effectiveness.
This
Amendment
shall
become effective on the date that each of the following conditions has been
satisfied:
A. Amendment
Documents.
The
Administrative Agent shall have received a
duly
executed counterpart of this Amendment from the Administrative Agent, the
Issuing Lender, the Canadian Dollar Lender, the Borrowers, the Subsidiary
Guarantors and the Required Lenders;
B. Proposed
Transaction Documents.
The
Administrative Agent shall have received the final executed agreements entered
into in connection with the Proposed Transaction (including all schedules and
exhibits thereto) and all related transaction documents with respect thereto,
in
each case in form and substance reasonably satisfactory to the Administrative
Agent;
C. Fees
and Expenses.
The
Administrative Agent shall have been reimbursed for all reasonable fees and
out-of-pocket charges and other expenses incurred in connection with this
Amendment,
including, without limitation, the fees and expenses referred to in Section
7
of this
Amendment,
the
Credit Agreement and the transactions contemplated thereby;
D. Canadian
Note.
The
Administrative Agent shall have received a
new
executed Canadian Note
in
favor of the Canadian Dollar Lender; and
E. Other
Documents.
The
Administrative Agent shall have received copies of each other document,
instrument or item reasonably requested by it.
SECTION 4. Reaffirmation
of Loan Documents.
By
its
execution hereof, each Borrower and each Subsidiary Guarantor hereby expressly
(i) consents to the modifications and amendments set forth in this Amendment,
(ii)
reaffirms all of its respective covenants, representations, warranties and
other
obligations set forth in the Credit Agreement, the Subsidiary Guaranty Agreement
and the other Loan Documents to which it is a party and (iii) acknowledges,
represents and agrees that its respective covenants, representations, warranties
and other obligations set forth in the Credit Agreement, the Subsidiary Guaranty
Agreement and the other Loan Documents to which it is a party remain in full
force and effect.
SECTION 5. Effect
of Amendment.
Except
as
expressly provided herein, the Credit Agreement and the other Loan Documents
shall remain in full force and effect. This Amendment
shall
not be deemed (i) to be a waiver of, or consent to, a modification or amendment
of, any other term or condition of the Credit Agreement or any other Loan
Document or (ii) to be a waiver of, or consent to, a modification or amendment
to any term or provision of any Loan Document specifically consented to, waived,
amended or modified by this Amendment
on
any
other occasion, or (iii) to prejudice any other right or rights which the
Administrative Agent or the Lenders may now have or may have in the future
under
or in connection with the Credit Agreement or the other Loan Documents or any
of
the instruments or agreements referred to therein, as the same may be amended
or
modified from time to time. References in the Credit Agreement to “this
Agreement” (and indirect references such as “hereunder”, “hereby”, “herein”, and
“hereof”) and in any Loan Document to the Credit Agreement shall be deemed to be
references to the Credit Agreement as modified hereby.
SECTION 6. Representations
and Warranties/No Default.
A. By
its
execution hereof, each Borrower and each Subsidiary Guarantor hereby certifies
that (i) each of the representations and warranties set forth in the Credit
Agreement and the other Loan Documents (after giving effect to this Amendment)
is true and correct as of the date hereof as if fully set forth herein, except
for any representation and warranty made as of an earlier date, which
representation and warranty shall remain true and correct as of such earlier
date and (ii) no Default or Event of Default has occurred and is continuing
as
of the date hereof.
B. By
its
execution hereof, each Borrower and each Subsidiary Guarantor hereby represents
and warrants that it has the right, power and authority and has taken all
necessary corporate and company action to authorize the execution, delivery
and
performance of this Amendment
and each other document executed in connection herewith to which it is a party
in accordance with their respective terms.
C. By
its
execution hereof, each Borrower and each Subsidiary Guarantor hereby represents
and warrants that this Amendment
and each other document executed in connection herewith has been duly executed
and delivered by its duly authorized officers, and each such document
constitutes the legal, valid and binding obligation of such Borrower or such
Subsidiary Guarantor, enforceable in accordance with its terms except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state or federal debtor relief laws from time to time
in
effect which affect the enforcement of creditors’ rights in general and the
availability of equitable remedies.
SECTION 7. Fees
and Expenses.
The
Borrowers shall pay all reasonable, out-of-pocket fees and expenses of the
Administrative Agent (including, without limitation, all costs of electronic
or
internet distribution of any information hereunder) in connection with the
preparation, execution and delivery of this Amendment,
including, without limitation, the reasonable, fees, disbursements and other
charges of counsel for the Administrative Agent.
SECTION 8. Governing
Law.
This
Amendment
shall be
governed by, construed and enforced in accordance with the laws of the State
of
North
Carolina, without reference to the conflicts or choice of law principles
thereof.
SECTION 9. Counterparts.
This
Amendment
may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an
original and shall be binding upon all parties, their successors and assigns,
and all of which taken together constitute one and the same
agreement.
SECTION 10. Fax
Transmission.
A
facsimile, telecopy or other reproduction of this Amendment
may be
executed by one or more parties hereto, and an executed copy of this
Amendment
may be
delivered by one or more parties hereto by facsimile or similar instantaneous
electronic transmission device pursuant to which the signature of or on behalf
of such party can be seen, and such execution and delivery shall be considered
valid, binding and effective for all purposes. At the request of any party
hereto, all parties hereto agree to execute an original of this Amendment
as well
as any facsimile, telecopy or other reproduction hereof.
[Signature
Pages To Follow]
1
4827-4488-3457.05
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the date and year first above written.
US
BORROWER:
By:
/s/
Xxxx X. Xxxxxx
Name:
Xxxx
X. Xxxxxx
Title:
Vice
President & Chief Financial Officer
CANADIAN
BORROWER:
SCP
DISTRIBUTORS INC.,
as
Canadian Borrower
By:
/s/
Xxxxxx X. Xxxxx de la Mesa
Name:
Xxxxxx
X. Xxxxx de la Mesa
Title:
President
and Chief Executive Officer
[Signature
pages continue]
ACKNOWLEDGED
AND AGREED TO BY:
SUBSIDIARY
GUARANTORS:
SCP
DISTRIBUTORS LLC,
as
Subsidiary Guarantor
By:
/s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx
X. Xxxxxxx
Title:
Treasurer
ALLIANCE
TRADING, INC.,
as
Subsidiary Guarantor
By:
/s/
Xxxxxxx Xxx
Name:
Xxxxxxx
Xxx
Title:
Secretary
CYPRESS,
INC.,
as
Subsidiary Guarantor
By:
/s/
Xxxxxxx Xxx
Name:
Xxxxxxx
Xxx
Title:
Secretary
SUPERIOR
POOL PRODUCTS LLC,
as
Subsidiary Guarantor
By:
/s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx
X. Xxxxxxx
Title:
Treasurer
[Signature
pages continue]
SCP
ACQUISITION CO. LLC,
as
Subsidiary Guarantor
By:
SCP
Distributors LLC, its Sole Member
By:
/s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx
X. Xxxxxxx
Title:
Treasurer
SCP
INTERNATIONAL, INC.,
as
Subsidiary Guarantor
By:
/s/
Xxxx X. Xxxxxx
Name:
Xxxx
X. Xxxxxx
Title:
Treasurer
POOL
DEVELOPMENT LLC,
as
Subsidiary Guarantor
By:
/s/
Xxxx X. Xxxxxx
Name:
Xxxx
X. Xxxxxx
Title:
Treasurer
SPLASH
HOLDINGS, INC.
(formerly known as FORT XXXXX POOLS, INC.), as Subsidiary Guarantor
By:
/s/
Xxxx X. Xxxxxx
Name:
Xxxx
X. Xxxxxx
Title:
Treasurer
HORIZON
DISTRIBUTORS, INC.,
as
Subsidiary Guarantor
By:
/s/
Xxxxxxxx X. Xxxx
Name:
Xxxxxxxx
X. Xxxx
Title:
Secretary
[Signature
pages continue]
POOLCORP
FINANCIAL MORTGAGE, LLC,
as
Subsidiary Guarantor
By:
/s/
Xxxx X. Xxxxxx
Name:
Xxxx
X. Xxxxxx
Title:
President
& Treasurer
[Signature
pages continue]
AGENTS
AND LENDERS:
|
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Swingline Lender, Issuing Lender and
Lender
|
By:
/s.
Xxxxxxx X. Xxxxxx III
Name:
Xxxxxxx
X. Xxxxxx III
Title:
Vice
President
[Signature
pages continue]
WACHOVIA
CAPITAL FINANCE CORPORATION (CANADA) (formerly
known as Congress Financial Corporation (Canada)), as Canadian Dollar
Lender
By:
/s/
Xxxx Xxxxxx
Name:
Xxxx
Xxxxxx
Title:
Vice
President
[Signature
pages continue]
JPMORGAN
CHASE BANK,
as
Syndication Agent and Lender
By:
/s/
H.
Xxxxx Xxxxx
Name:
H.
Xxxxx Xxxxx
Title:
Senior
Vice President
[Signature
pages continue]
CAPITAL
ONE, NATIONAL ASSOCIATION (successor-by-merger
to HIBERNIA
NATIONAL BANK), as Documentation Agent and Lender
By:
/s/
Xxxxxxxxx X. Xxx
Name:
Xxxxxxxxx
X. Xxx
Title:
Vice
President
[Signature
pages continue]
XXXXX
FARGO BANK NATIONAL ASSOCIATION,
as
Documentation Agent and Lender
By:
/s/
Xxxxx Xxxxxx
Name:
Xxxxx
Xxxxxx
Title:
Vice
President
[Signature
pages continue]
REGIONS
BANK,
as
Lender
By:
/s/
Xxxxx X. Xxxxx
Name:
Xxxxx
X. Xxxxx
Title:
Senior
Vice President
