THIS
SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of
September 5, 2002, between SCP POOL CORPORATION, a Delaware corporation (the
“Borrower”), and BANK ONE, NA, as administrative agent (in such capacity, the
“Administrative Agent”).
BACKGROUND
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A. |
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The
Borrower and the Administrative Agent are parties to that certain Credit Agreement
dated as of November 27, 2001 (as the same has been and may be amended, modified,
supplemented, or restated from time to time, the “Credit Agreement”; terms defined in
the Credit Agreement and not otherwise defined herein shall be used herein as defined in
the Credit Agreement). |
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B. |
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The
Borrower has requested an amendment to Schedule 1 of the Credit Agreement, and the
Administrative Agent has agreed to such amendment, subject to the terms and conditions
contained herein. |
NOW,
THEREFORE, in consideration of the covenants, conditions and agreements hereafter set
forth, and for other good and valuable consideration, the receipt and adequacy of which
are all hereby acknowledged, the parties hereto covenant and agree as follows:
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(a) |
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Amendment
to Schedule 1 to the Credit Agreement. Effective as of the date hereof, all references
in the Credit Agreement to “Schedule 1” shall be deemed to refer to the “Schedule 1”
attached hereto as Schedule 1. |
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2. |
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REPRESENTATIONS
AND WARRANTIES TRUE; NO DEFAULT. By its execution and delivery hereof, the
Borrower represents and warrants to the Administrative Agent that, as of the date
hereof: |
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(a) |
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after
giving effect to this Amendment, the representations and warranties contained in the
Credit Agreement and the other Loan Documents are true and correct in all
material respects on and as of the date hereof as made on and as of such date,
except for any representations and warranties made as of a specific date,
which shall be true and correct or shall have been true, as applicable, in all
material respects as of such specific date; and |
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(b) |
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after
giving effect to this Amendment, no event has occurred and is continuing which
constitutes a Default or an Unmatured Default. |
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3. |
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CONDITIONS
OF EFFECTIVENESS. This Amendment shall not be effective until each of the following
conditions precedent shall have been satisfied: |
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(a) |
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The
Administrative Agent shall have received all of the following, each dated (unless
otherwise indicated) the date of this Amendment, in form and substance
reasonably satisfactory to the Administrative Agent: |
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(i) |
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This
Amendment executed by the Borrower and the Administrative Agent and acknowledged by the
Guarantors. |
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(ii) |
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Guaranty
Supplement (as defined in the Guaranty) executed by Fort Xxxxx Pools, Inc. |
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(iii) |
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Security
Agreement Supplement (as defined in the Security Agreement) executed by Fort Xxxxx Pools,
Inc. |
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(iv) |
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Copies
of the certificate of incorporation of Fort Xxxxx Pools, Inc., together with all
amendments, and certificate of existence and good standing, each
certified by the appropriate governmental officer in its jurisdiction of
incorporation. |
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(v) |
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Copies,
certified by the Secretary or Assistant Secretary of Fort Xxxxx Pools, Inc., of its
bylaws, and resolutions of the Board of Directors of Fort Xxxxx
Pools, Inc. authorizing the execution of the Loan Documents to which it is a
party. |
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(vi) |
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An
incumbency certificate, executed by the Secretary or Assistant Secretary of Fort
Xxxxx Pools, Inc., which shall identify by name and title and bear
the signatures of the Authorized Officers and any other officers of Fort
Xxxxx Pools, Inc. authorized to sign the Loan Documents to which
it is a party, upon which certificate the Administrative Agent shall
be entitled to rely until informed of any change in writing by Fort Xxxxx Pools, Inc. |
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(vii) |
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A
written opinion of the Borrower's counsel, addressed to the Administrative Agent and the
Lenders. |
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(viii) |
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Uniform
Commercial Code financing statement covering such Collateral (as defined in the Security
Agreement) of Fort Xxxxx Pools, Inc. as the Administrative Agent may
request. |
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(ix) |
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The
insurance certificate as described in Section 5.21 of the Credit Agreement and
Section 4.3.2 of the Security Agreement. |
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(x) |
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Such
other documents as the Administrative Agent may reasonably request. |
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4. |
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REFERENCE
TO CREDIT AGREEMENT. Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to “this Agreement,” “hereunder,” or words of like import shall mean
and be a reference to the Credit Agreement, as affected and amended by this Amendment. |
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5. |
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COUNTERPARTS;
EXECUTION VIA FACSIMILE. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. This Amendment may be validly executed and
delivered by facsimile or other electronic transmission. |
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6. |
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GOVERNING
LAW; BINDING EFFECT. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas and shall be binding upon the Borrower,
the Administrative Agent, and their respective successors and assigns. |
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7. |
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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. |
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8. |
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LOAN
DOCUMENT. This Amendment is a Loan Document and is subject to all provisions of the
Credit Agreement applicable to Loan Documents, all of which are incorporated in this
Amendment by reference the same as if set forth in this Amendment verbatim. |
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9. |
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NO
ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. |
[Balance of page
intentionally left blank.]
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IN
WITNESS WHEREOF, the Borrower and the Administrative Agent have executed this
Amendment as of the date first above written.
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By: |
/S/ Xxxxxx X. Xxxxx de la Mesa
Xxxxxx X.
Xxxxx de la Mesa
President and Chief Executive Officer |
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BANK ONE,
NA,
as Administrative Agent |
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By: |
/S/ Xxxx Xxxxx
Xxxx Xxxxx
Vice President |
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Guarantors
hereby consent and agree to this Amendment and agree that, subsequent to the execution
of this Amendment, the Guaranty shall remain in full force and effect and shall
continue to be the legal, valid and binding obligation of Guarantors enforceable
against Guarantors in accordance with its terms. In addition, Guarantors hereby agree
that the Security Agreement and other Loan Documents they are parties to, shall
remain in full force and effect and shall continue to (i) secure the Secured
Obligations and (ii) be the legal, valid and binding obligations of Guarantors and
enforceable against Guarantors in accordance with their respective terms.
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GUARANTORS:
SCP DISTRIBUTORS LLC |
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By: |
/S/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer, Secretary
and Treasurer |
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By: |
/S/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Secretary |
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By: |
/S/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer, Secretary
and Treasurer |
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SUPERIOR POOL PRODUCTS LLC |
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By: |
/S/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer, Secretary
and Treasurer |
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By: |
SCP Distributors LLC,
as its sole member
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By: |
/S/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer, Secretary
and Treasurer |
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By: |
SCP Distributors LLC, its sole member
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By: |
/S/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer, Secretary
and Treasurer |
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By: |
SCP
Distributors LLC,
as its general partner
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By: |
/S/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer, Secretary
and Treasurer |
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By: |
/S/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Secretary |
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By: |
/S/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer, Secretary
and Treasurer |
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