SUBSIDIARY GUARANTY
EXHIBIT
10.2
THIS
GUARANTY (this “Guaranty”) dated as of February 1, 2007 is made
by the undersigned (each, a “Guarantor”), in favor of the holders from time to
time of the Notes hereinafter referred to, including each purchaser named
in the
Note Purchase Agreement hereinafter referred to, and their respective successors
and assigns (collectively, the “Holders” and each individually, a
“Holder”).
W I T N E S S E T H:
WHEREAS,
Pool Corporation, a Delaware corporation (the “Company”),
and the initial Holders have entered into a Note Purchase Agreement dated
as of
February 1, 2007 (the Note Purchase Agreement as amended, restated or otherwise
modified from time to time in accordance with its terms and in effect, the
“Note
Purchase Agreement”);
WHEREAS,
the Note Purchase Agreement provides for the issuance by the
Company of $100,000,000 aggregate principal amount of Notes (as defined in
the
Note Purchase Agreement);
WHEREAS,
the Company directly or indirectly owns all or a substantial
portion of the issued and outstanding capital stock of each Guarantor and,
by
virtue of such ownership and otherwise, each Guarantor will derive substantial
benefits from the purchase by the Holders of the Company’s Notes;
WHEREAS,
it is a condition precedent to the obligation of the Holders
to purchase the Notes that each Guarantor shall have executed and delivered
this
Guaranty to the Holders; and
WHEREAS,
each Guarantor desires to execute and deliver this Guaranty
to satisfy the conditions described in the preceding paragraph;
NOW,
THEREFORE, in consideration of the premises and other benefits
to each Guarantor, and of the purchase of the Company’s Notes by the Holders,
and for other good and valuable consideration, the receipt and sufficiency
of
which are acknowledged, each Guarantor makes this Guaranty as follows:
SECTION
1. Definitions. Any capitalized terms not otherwise
herein defined shall have the meanings attributed to them in the Note Purchase
Agreement.
SECTION
2. Guaranty. Each Guarantor, jointly and severally
with each other Guarantor, unconditionally and irrevocably guarantees to
the
Holders the due, prompt and complete payment by the Company of the principal
of,
make-whole amount, if any, prepayment premium, if any, breakage amount, if
any,
and interest on, and each other amount due under, the Notes or the Note Purchase
Agreement, when and as the same shall become due and payable (whether at
stated
maturity or by required or optional prepayment or by acceleration or otherwise)
in accordance with the terms of the Notes and the Note Purchase Agreement
(the
Notes and the Note Purchase Agreement being sometimes hereinafter collectively
referred to as the “Note Documents” and the amounts payable by the Company under
the Note Documents, and all other monetary obligations of the Company thereunder
(including any attorneys’ fees and expenses), being sometimes collectively
hereinafter referred to as the “Obligations”). This Guaranty is a guaranty of
payment and not just of collectibility and is in no way conditioned or
contingent upon any attempt to collect from the Company or upon any other
event,
contingency or circumstance whatsoever. If for any reason whatsoever the
Company
shall fail or be unable duly, punctually and fully to pay such amounts as
and
when the same shall become due and payable, each Guarantor, without demand,
presentment, protest or notice of any kind, will forthwith pay or cause to
be
paid such amounts to the Holders under the terms of such Note Documents,
in
lawful money of the United States, at the place specified in the Note Purchase
Agreement, or perform or comply with the same or cause the same to be performed
or complied with, together with interest (to the extent provided for under
such
Note Documents) on any amount due and owing from the Company. Each Guarantor,
promptly after demand, will pay to the Holders the reasonable costs and expenses
of collecting such amounts or otherwise enforcing this Guaranty, including,
without limitation, the reasonable fees and expenses of counsel. Notwithstanding
the foregoing, the right of recovery against each Guarantor under this Guaranty
is limited to the extent it is judicially determined with respect to any
Guarantor that entering into this Guaranty would violate Section 548 of the
United States Bankruptcy Code or any comparable provisions of any state law,
in
which case such Guarantor shall be liable under this Guaranty only for amounts
aggregating up to the largest amount that would not render such Guarantor’s
obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or any comparable provisions of any state law.
SECTION
3. Guarantor’s Obligations Unconditional. The
obligations of each Guarantor under this Guaranty shall be primary, absolute
and
unconditional obligations of each Guarantor, shall not be subject to any
counterclaim, set-off, deduction, diminution, abatement, recoupment, suspension,
deferment, reduction or defense based upon any claim each Guarantor or any
other
person may have against the Company or any other person, and to the full
extent
permitted by applicable law shall remain in full force and effect without
regard
to, and shall not be released, discharged or in any way affected by, any
circumstance or condition whatsoever (whether or not each Guarantor or the
Company shall have any knowledge or notice thereof), including:
(a) any
termination, amendment or modification of or deletion from or addition or
supplement to or other change in any of the Note Documents or any other
instrument or agreement applicable to any of the parties to any of the Note
Documents;
(b) any
furnishing or acceptance of any security, or any release of any security,
for
the Obligations, or the failure of any security or the failure of any person
to
perfect any interest in any collateral;
(c) any
failure, omission or delay on the part of the Company to conform or comply
with
any term of any of the Note Documents or any other instrument or agreement
referred to in paragraph (a) above, including, without limitation, failure
to
give notice to any Guarantor of the occurrence of a “Default” or an “Event of
Default” under any Note Document;
(d) any
waiver
of the payment, performance or observance of any of the obligations, conditions,
covenants or agreements contained in any Note Document, or any other waiver,
consent, extension, indulgence, compromise, settlement, release or other
action
or inaction under or in respect of any of the Note Documents or any other
instrument or agreement referred to in paragraph (a) above or any obligation
or
liability of the Company, or any exercise or non-exercise of any right, remedy,
power or privilege under or in respect of any such instrument or agreement
or
any such obligation or liability;
(e) any
failure, omission or delay on the part of any of the Holders to enforce,
assert
or exercise any right, power or remedy conferred on such Holder in this
Guaranty, or any such failure, omission or delay on the part of such Holder
in
connection with any Note Document, or any other action on the part of such
Holder;
(f) any
voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement,
readjustment, assignment for the benefit of creditors, composition,
receivership, conservatorship, custodianship, liquidation, marshaling of
assets
and liabilities or similar proceedings with respect to the Company, any
Guarantor or to any other person or any of their respective properties or
creditors, or any action taken by any trustee or receiver or by any court
in any
such proceeding;
(g) any
discharge, termination, cancellation, frustration, irregularity, invalidity
or
unenforceability, in whole or in part, of any of the Note Documents or any
other
agreement or instrument referred to in paragraph (a) above or any term
hereof;
(h) any
merger
or consolidation of the Company or any Guarantor into or with any other
corporation, or any sale, lease or transfer of any of the assets of the Company
or any Guarantor to any other person;
(i) any
change
in the ownership of any shares of capital stock of the Company or any change
in
the corporate relationship between the Company and any Guarantor, or any
termination of such relationship;
(j) any
release or discharge, by operation of law, of any Guarantor from the performance
or observance of any obligation, covenant or agreement contained in this
Guaranty; or
(k) any
other
occurrence, circumstance, happening or event whatsoever, whether similar
or
dissimilar to the foregoing, whether foreseen or unforeseen, and any other
circumstance which might otherwise constitute a legal or equitable defense
or
discharge of the liabilities of a guarantor or surety or which might otherwise
limit recourse against any Guarantor.
SECTION
4. Full Recourse Obligations. The obligations of each
Guarantor set forth herein constitute the full recourse obligations of such
Guarantor enforceable against it to the full extent of all its assets and
properties.
SECTION
5. Waiver. Each Guarantor unconditionally waives, to
the extent permitted by applicable law, (a) notice of any of the matters
referred to in Section 3, (b) notice to such Guarantor of the incurrence of
any of the Obligations, notice to such Guarantor or the Company of any breach
or
default by such Guarantor or the Company with respect to any of the Obligations
or any other notice that may be required, by statute, rule of law or otherwise,
to preserve any rights of the Holders against such Guarantor,
(c) presentment to or demand of payment from the Company or the Guarantor
with respect to any amount due under any Note Document or protest for nonpayment
or dishonor, (d) any right to the enforcement, assertion or exercise by any
of the Holders of any right, power, privilege or remedy conferred in the
Note
Purchase Agreement or any other Note Document or otherwise, (e) any
requirement of diligence on the part of any of the Holders, (f) any
requirement to exhaust any remedies or to mitigate the damages resulting
from
any default under any Note Document, (g) any notice of any sale, transfer
or other disposition by any of the Holders of any right, title to or interest
in
the Note Purchase Agreement or in any other Note Document and (h) any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge, release (other than a release of such Guarantor herefrom pursuant
to
Section 9.7(b) of the Note Purchase Agreement) or defense of a guarantor
or
surety (other than the defense of payment) or which might otherwise limit
recourse against such Guarantor.
SECTION
6. Subrogation, Contribution, Reimbursement or
Indemnity. Until all Obligations have been indefeasibly paid in full, each
Guarantor agrees not to take any action pursuant to any rights which may
have
arisen in connection with this Guaranty to be subrogated to any of the rights
(whether contractual, under the United States Bankruptcy Code, as amended,
including Section 509 thereof, under common law or otherwise) of any of the
Holders against the Company or against any collateral security or guaranty
or
right of offset held by the Holders for the payment of the Obligations. Until
all Obligations have been indefeasibly paid in full, each Guarantor agrees
not
to take any action pursuant to any contractual, common law, statutory or
other
rights of reimbursement, contribution, exoneration or indemnity (or any similar
right) from or against the Company which may have arisen in connection with
this
Guaranty. So long as any Obligations remain outstanding, if any amount shall
be
paid by or on behalf of the Company to any Guarantor on account of any of
the
rights waived in this Section 6, such amount shall be held by such Guarantor
in
trust, segregated from other funds of such Guarantor, and shall, forthwith
upon
receipt by such Guarantor, be turned over to the Holders (duly endorsed by
such
Guarantor to the Holders, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Holders may determine.
The
provisions of this Section 6 shall survive the term of this Guaranty and
the
payment in full of the Obligations.
SECTION
7. Effect of Bankruptcy Proceedings, etc. This
Guaranty shall continue to be effective or be automatically reinstated, as
the
case may be, if at any time payment, in whole or in part, of any of the sums
due
to any of the Holders pursuant to the terms of the Note Purchase Agreement
or
any other Note Document is rescinded or must otherwise be restored or returned
by such Holder upon the insolvency, bankruptcy, dissolution, liquidation
or
reorganization of the Company or any other person, or upon or as a result
of the
appointment of a custodian, receiver, trustee or other officer with similar
powers with respect to the Company or other person or any substantial part
of
its property, or otherwise, all as though such payment had not been made.
If an
event permitting the acceleration of the maturity of the principal amount
of the
Notes shall at any time have occurred and be continuing, and such acceleration
shall at such time be prevented by reason of the pendency against the Company
or
any other person of a case or proceeding under a bankruptcy or insolvency
law,
each Guarantor agrees that, for purposes of this Guaranty and its obligations
hereunder, the maturity of the principal amount of the Notes and all other
Obligations shall be deemed to have been accelerated with the same effect
as if
any Holder had accelerated the same in accordance with the terms of the Note
Purchase Agreement or other applicable Note Document, and such Guarantor
shall
forthwith pay such principal amount, LIBOR Breakage Amount, if any, and interest
thereon and any other amounts guaranteed hereunder without further notice
or
demand.
SECTION
8. Term of Agreement. This Guaranty and all
guaranties, covenants and agreements of each Guarantor contained herein shall
continue in full force and effect and shall not be discharged until such
time as
all of the Obligations shall be paid and performed in full and all of the
agreements of such Guarantor hereunder shall be duly paid and performed in
full;
provided that each Guarantor shall be automatically and immediately released
herefrom without any further act by any Person as provided in Section 9.7(b)
of
the Note Purchase Agreement.
SECTION
9. Representations and Warranties. Each Guarantor
represents and warrants to each Holder that:
(a) such
Guarantor is duly organized, validly existing and in good standing under
the
laws of its jurisdiction of organization and has the requisite power and
authority to own and operate its property, to lease the property it operates
as
lessee and to conduct the business in which it is currently engaged;
(b) such
Guarantor has the requisite power and authority and the legal right to execute
and deliver, and to perform its obligations under, this Guaranty, and has
taken
all necessary action to authorize its execution, delivery and performance
of
this Guaranty;
(c) this
Guaranty constitutes a legal, valid and binding obligation of such Guarantor
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws
affecting the enforcement of creditors’ rights generally and by general
equitable principles (regardless of whether such enforceability is considered
in
a proceeding in equity or at law);
(d) the
execution, delivery and performance of this Guaranty will not
(i) contravene, result in any breach of, or constitute a default under, or
result in the creation of any Lien in respect of any property of such Guarantor
under any indenture, mortgage, deed of trust, loan, credit agreement, corporate
charter or by-laws, or any other agreement evidencing Debt, (ii) contravene,
result in any breach of, or constitute a default under, or result in the
creation of any Lien in respect of any property of such Guarantor under,
any
other agreement or instrument to which such Guarantor is bound or by which
such
Guarantor or any of its properties may be bound or affected, except as could
not
reasonably be expected to have a Material Adverse Effect, (iii) conflict
with or
result in a breach of any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or Governmental Authority
applicable to such Guarantor, except as could not reasonably be expected
to have
a Material Adverse Effect, or (iv) violate any provision of any statute or
other rule or regulation of any Governmental Authority applicable to such
Guarantor, except as could not reasonably be expected to have a Material
Adverse
Effect;
(e) no
consent, approval or authorization of, or registration, filing or declaration
with, any Governmental Authority is required in connection with the execution,
delivery or performance by such Guarantor of this Guaranty;
(f) except
as
disclosed in Section 5.8 of the Note Purchase Agreement, no litigation,
investigation or proceeding of or before any arbitrator or governmental
authority is pending or, to the knowledge of such Guarantor, threatened by
or
against such Guarantor or any of its properties or revenues (i) with
respect to this Guaranty or any of the transactions contemplated hereby or
(ii) that could reasonably be expected to have a material adverse effect
upon the business, operations or financial condition of such Guarantor and
its
Subsidiaries taken as a whole;
(g) such
Guarantor (after giving due consideration to any rights of contribution)
has
received fair consideration and reasonably equivalent value for the incurrence
of its obligations hereunder or as contemplated hereby and after giving effect
to the transactions contemplated herein, (i) the fair value of the assets
of such Guarantor (both at fair valuation and at present fair saleable value)
exceeds its liabilities, (ii) such Guarantor is able to and expects to be
able
to pay its debts as they mature, and (iii) such Guarantor has capital
sufficient to carry on its business as conducted and as proposed to be
conducted.
SECTION
10. Notices. All notices and communications provided for hereunder shall
be in writing and sent (a) by facsimile if the sender on the same day sends
a confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery
service (with charges prepaid), addressed (a) if to the Company or any
Holder at the address or telecopy number set forth in the Note Purchase
Agreement or (b) if to a Guarantor, in care of the Company at the Company’s
address or telecopy number set forth in the Note Purchase Agreement, or
in each
case at such other address or telecopy number as the Company, any Holder
or such
Guarantor shall from time to time designate in writing to the other parties.
Any
notice so addressed shall be deemed to be given when actually
received.
SECTION
11. Survival. All warranties, representations and
covenants made by each Guarantor herein or in any certificate or other
instrument delivered by it or on its behalf hereunder shall be considered
to
have been relied upon by the Holders and shall survive the execution and
delivery of this Guaranty, regardless of any investigation made by any of
the
Holders. All statements in any such certificate or other instrument shall
constitute warranties and representations by such Guarantor hereunder.
SECTION
12. Jurisdiction and Process; Waiver of Jury Trial.
(a) Each
Guarantor irrevocably submits to the non exclusive jurisdiction of any New
York
State or federal court sitting in the Borough of Manhattan, The City of New
York, over any suit, action or proceeding arising out of or relating solely
to
this Agreement or the Notes. To the fullest extent permitted by applicable
law,
each Guarantor irrevocably waives and agrees not to assert, by way of motion,
as
a defense or otherwise, any claim that it is not subject to the jurisdiction
of
any such court, any objection that it may now or hereafter have to the laying
of
the venue of any such suit, action or proceeding brought in any such court
and
any claim that any such suit, action or proceeding brought in any such court
has
been brought in an inconvenient forum.
(b) Each
Guarantor consents to process being served in any suit, action or proceeding
solely of the nature referred to in Section 12(a) by mailing a copy thereof
by
registered or certified or priority mail, postage prepaid, return receipt
requested, or delivering a copy thereof in the manner for delivery of notices
specified in Section 10, to it. Each Guarantor agrees that such service upon
receipt (i) shall be deemed in every respect effective service of process
upon
it in any such suit, action or proceeding and (ii) shall, to the fullest
extent
permitted by applicable law, be taken and held to be valid personal service
upon
and personal delivery to it. Notices hereunder shall be conclusively presumed
received as evidenced by a delivery receipt furnished by the United States
Postal Service or any reputable commercial delivery service.
(c) Nothing
in
this Section 12 shall affect the right of any holder of a Note to serve process
in any manner permitted by law, or limit any right that the holders of any
of
the Notes may have to bring proceedings against any Guarantor in the courts
of
any appropriate jurisdiction or to enforce in any lawful manner a judgment
obtained in one jurisdiction in any other jurisdiction.
(d) EACH
GUARANTOR WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO
THIS
AGREEMENT, THE NOTES OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH
OR
THEREWITH.
SECTION
13. Miscellaneous. Any provision of this Guaranty
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, each Guarantor hereby waives any provision of
law
that renders any provisions hereof prohibited or unenforceable in any respect.
The terms of this Guaranty shall be binding upon, and inure to the benefit
of,
each Guarantor and the Holders and their respective successors and assigns.
No
term or provision of this Guaranty may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by each Guarantor
and the Required Holders. The section and paragraph headings in this Guaranty
and the table of contents are for convenience of reference only and shall
not
modify, define, expand or limit any of the terms or provisions hereof, and
all
references herein to numbered sections, unless otherwise indicated, are to
sections in this Guaranty. This Guaranty shall in all respects be governed
by,
and construed in accordance with, the laws of the State of New York, including
all matters of construction, validity and performance.
[REMAINDER
OF PAGE LEFT BLANK. SIGNATURE PAGE FOLLOWS.]
CHIC_
IN
WITNESS WHEREOF, each Guarantor has caused
this Guaranty to be duly executed as of the day and year first above
written.
|
SCP
DISTRIBUTORS LLC,
a
Delaware limited liability company
By: /s/
Xxxxx X.
Xxxxxxx
Name: Xxxxx
X. Xxxxxxx
Title:
Treasurer
|
ALLIANCE
TRADING, INC.,
a
Delaware corporation
By:
/s/
Xxxxxxx Xxx
Name:
Xxxxxxx
Xxx
Title:
Secretary
|
|
CYPRESS,
INC.,
a
Nevada corporation
By:
/s/
Xxxxxxx Xxx
Name:
Xxxxxxx
Xxx
Title:
Secretary
|
SUPERIOR
POOL PRODUCTS LLC,
a
Delaware limited liability company
By:
/s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx
X. Xxxxxxx
Title:
Treasurer
|
|
SCP
ACQUISITION CO. LLC,
a
Delaware limited liability company
By:
SCP Distributors LLC, its Sole Member
By: /s/
Xxxxx X.
Xxxxxxx
Name: Xxxxx
X. Xxxxxxx
Title:
Treasurer
|
SCP
INTERNATIONAL, INC.,
a
Delaware corporation
By:
/s/
Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title:
Treasurer
|
|
POOL
DEVELOPMENT LLC,
a
Delaware limited liability company
By:
/s/
Xxxx X. Xxxxxx
Name:
Xxxx
X. Xxxxxx
Title:
Treasurer
|
SPLASH
HOLDINGS, INC.,
an
Indiana corporation
By:
/s/
Xxxx X. Xxxxxx
Name:
Xxxx
X. Xxxxxx
Title:
Treasurer
|
|
HORIZON
DISTRIBUTORS, INC.,
a
Delaware corporation
By:
/s/
Xxxxxxxx X. Xxxx
Name:
Xxxxxxxx
X. Xxxx
Title: Secretary
|
POOLCORP
FINANCIAL MORTGAGE, LLC, a Delaware limited liability
company
By:
/s/
Xxxx X. Xxxxxx
Name:
Xxxx
X. Xxxxxx
Title:
President
&
Treasurer
|
