FIRST AMENDMENT
Exhibit
10.34
FIRST
AMENDMENT
THIS FIRST AMENDMENT (this “Amendment”), is made
and entered into as of this 26th day of February, 2010, 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 party to the Credit Agreement referred to below (collectively, the
“Lenders”) and
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as
Administrative Agent for the Lenders.
Statement of
Purpose
The Lenders agreed to extend certain
credit facilities to the Borrowers pursuant to the Amended and Restated Credit
Agreement dated as of December 20, 2007 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”) by
and among the Borrowers, the Lenders and the Administrative Agent.
Subject to the terms and conditions set
forth in this Amendment, the Borrowers desire to amend or modify certain
provisions of the Credit Agreement 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. Section 11.6 of the
Credit Agreement (“Limitations on Dividends and Distributions”) is hereby
amended by amending and restating subsection (b) thereof as
follows:
“(b) so
long as no Default or Event of Default has occurred and is continuing or would
result therefrom, the US Borrower may declare and pay quarterly dividends in a
manner consistent with the past practice of the US Borrower in amounts
reasonably determined by the board of directors of the US Borrower; provided that the
dividends declared and paid in any Fiscal Year shall be subject to the following
limitations:
(i) the
aggregate amount of dividends declared and paid during the first quarter of the
Fiscal Year ending December 31, 2010 shall not exceed, (A) twenty five percent
(25%) times (B)
fifty-five percent (55%) of Net Income for the Fiscal Year ended December 31,
2009 (as set forth in the audited financial statements of the US Borrower and
its Subsidiaries for the Fiscal Year ended December 31, 2009, or, if such
audited financial statements have not yet been delivered pursuant to Section 8.1(b), the
unaudited management prepared financial statements of the US Borrower and its
Subsidiaries for the Fiscal Year ended December 31, 2009); and
(ii) the
aggregate amount of dividends declared and paid during the second, third and
fourth fiscal quarters of the Fiscal Year ending December 31, 2010
shall, when aggregated with the amount of dividends declared and paid in the
first quarter of such Fiscal Year pursuant to clause (i) above, shall not exceed
fifty-five percent (55%) of Net Income for the Fiscal Year ended December 31,
2009 (as set forth in the audited financial statements of the US Borrower and
its Subsidiaries for the Fiscal Year ended December 31, 2009) (such amount, the
“2010 Dividend
Cap”); provided that if Net
Income for the Fiscal Year ended December 31, 2009 (as set forth in the
unaudited management prepared financial statements of the US Borrower and its
Subsidiaries for such Fiscal Year) exceeds Net Income (as set forth in the
audited financial statements of the US Borrower and its Subsidiaries for such
Fiscal Year) by $2,000,000 or greater, the 2010 Dividend Cap shall be reduced to
fifty percent (50%) of Net Income for the Fiscal Year ended December 31, 2009
(as set forth in the audited financial statements of the US Borrower and its
Subsidiaries for such Fiscal Year); and
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(iii) with
respect to the Fiscal Year ending December 31, 2011 and each Fiscal Year
thereafter, the aggregate amount of dividends declared and paid during each
Fiscal Year shall not exceed fifty percent (50%) of Net Income for the Fiscal
Year preceding the Fiscal Year in which such dividend is to be declared and paid
(as set forth in the audited financial statements of the US Borrower and its
Subsidiaries for such preceding Fiscal Year);”
SECTION 3. Effectiveness. This
Amendment shall become effective on the date (such date, the “Effective 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
Borrowers, the Subsidiary Guarantors and the Required Lenders;
(b) Fees and
Expenses.
(i) The
US Borrower shall have paid to the Administrative Agent (or its applicable
affiliates), for the account of each Lender that executes and delivers a
signature page to the Administrative Agent (or its counsel) on or prior to 5
p.m. (Eastern Time) on February 26, 2010 (each a “Consenting Lender”),
an amendment fee equal to 5 basis points times each such Consenting Lender’s
Revolving Credit Commitment and outstanding Term Loans, in each case as
applicable and as in effect on the Effective Date.
(ii) The
Administrative Agent shall have been reimbursed for all reasonable fees and
out-of-pocket charges and other expenses (including, without limitation, all
costs of electronic or internet distribution of any information hereunder)
incurred in connection with this Amendment, including without limitation, the
reasonable fees and expenses of counsel to the Administrative Agent;
and
(c) 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 (a) consents to the modifications and
amendments set forth in this Amendment, (b) 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 (c) 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.
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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 (a) 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 (b) 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 (c) 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. 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 8. 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.
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SECTION 9. 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]
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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/
Xxxxxx X. Xxxxx de la
Mesa
Name: Xxxxxx X. Xxxxx de la
Mesa
Title: President and
CEO
CANADIAN
BORROWER:
SCP DISTRIBUTORS INC., an
Ontario corporation, as Canadian Borrower
By: /s/
Xxxxxx X. Xxxxx de la
Mesa
Name: Xxxxxx X. Xxxxx de la
Mesa
Title: President and
CEO
[Signature
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ACKNOWLEDGED AND AGREED TO
BY:
SUBSIDIARY
GUARANTORS:
SCP DISTRIBUTORS LLC
(successor by merger to NATIONAL POOL TITLE GROUP, INC.), a Delaware limited
liability company, as Subsidiary
Guarantor
By: /s/
Xxxxxx X. Xxxxx de la
Mesa
Name: Xxxxxx X. Xxxxx de la
Mesa
Title: President
and
CEO
ALLIANCE TRADING, INC., a
Delaware corporation, as Subsidiary Guarantor
By: /s/
Xxxxxxx Xxxxxx
Name: Xxxxxxx
Xxxxxx
Title: President
and
Secretary
CYPRESS, INC., a Nevada
corporation, as Subsidiary Guarantor
By: /s/
Xxxxxxx
Xxxxxx
Name: Xxxxxxx
Xxxxxx
Title: President and
Secretary
SUPERIOR POOL PRODUCTS LLC, a
Delaware limited liability company, as Subsidiary Guarantor
By: /s/
Xxxxxx X. Xxxxx de la
Mesa
Name: Xxxxxx X. Xxxxx de la
Mesa
Title: President
and
CEO
[Signature
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SCP ACQUISITION CO. LLC, a
Delaware limited liability company, as Subsidiary Guarantor
By:
SCP Distributors LLC, its Sole Member
By: /s/
Xxxxxx X. Xxxxx de la
Mesa
Name: Xxxxxx X. Xxxxx de la
Mesa
Title: President
and
CEO
SCP INTERNATIONAL, INC, a
Delaware corporation, as Subsidiary Guarantor
By: /s/
Xxxxxx X. Xxxxx de la
Mesa
Name: Xxxxxx X. Xxxxx de la
Mesa
Title: President
and
CEO
POOL DEVELOPMENT LLC, a
Delaware limited liability company, as Subsidiary Guarantor
By: /s/
Xxxxxx X. Xxxxx de la
Mesa
Name: Xxxxxx X. Xxxxx de la
Mesa
Title: President and
CEO
SPLASH HOLDINGS, INC.
(successor by merger to SPLASH HOLDINGS, INC. (formerly known as FORT XXXXX
POOLS, INC.), an Indiana corporation), a Delaware corporation, as Subsidiary
Guarantor
By: /s/
Xxxxxx X. Xxxxx de la
Mesa
Name: Xxxxxx X. Xxxxx de la
Mesa
Title: President
and
CEO
HORIZON DISTRIBUTORS, INC., a
Delaware corporation, as Subsidiary Guarantor
By: /s/
Xxxxxx X. Xxxxx de la
Mesa
Name: Xxxxxx X. Xxxxx de la
Mesa
Title: Vice
President
[Signature
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POOLCORP FINANCIAL MORTGAGE,
LLC, a Delaware limited liability company, as Subsidiary
Guarantor
By: /s/
Xxxx X.
Xxxxxx
Name: Xxxx X.
Xxxxxx
Title: President
POOLCORP FINANCIAL INC., a
Delaware corporation, as Subsidiary Guarantor
By: /s/
Xxxx
X. Xxxxxx
Name: Xxxx X.
Xxxxxx
Title: President
[Signature
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AGENTS
AND LENDERS:
|
|
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent, Swingline Lender, Issuing
Lender and a Lender
|
By: /s/
Xxxx
Xxxxxxxx
Name: Xxxx
Xxxxxxxx
Title: Vice
President
[Signature
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WACHOVIA CAPITAL FINANCE CORPORATION
(CANADA) (formerly known as Congress Financial Corporation (Canada)), as
Canadian Dollar Lender
By: /s/ Xxxxxxx
Xxxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxxx
Title: Vice
President
[Signature
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BANK OF AMERICA, N.A., as a
Lender
By: /s/
Xxxx X.
Xxxxxx
Name: Xxxx X.
Xxxxxx
Title: Senior Vice
President
[Signature
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CAPITAL ONE, NATIONAL ASSOCIATION
(successor-by-merger to HIBERNIA NATIONAL BANK), as a Lender
By: /s/
Xxxxxxxxx
Xxx
Name: Xxxxxxxxx
Xxx
Title: Senior Vice
President
[Signature
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COMERICA BANK, as a
Lender
By: /s/
Xxxxxxxxx X.
Xxxxx
Name: Xxxxxxxxx X.
Xxxxx
Title: Vice
President
[Signature
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REGIONS BANK, as a
Lender
By: /s/
Xxxxx X.
Xxxxx
Name: Xxxxx X.
Xxxxx
Title: Senior Vice
President
[Signature
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XXXXX FARGO BANK NATIONAL
ASSOCIATION, as a Lender
By: /s/
Xxxx
Xxxxxxxx
Name: Xxxx
Xxxxxxxx
Title: Vice
President
