EXHIBIT 10.33
AMENDMENT TO
ASSET PURCHASE AGREEMENT
This Amendment to Asset Purchase Agreement is made and entered into as of
this 31st day of December, 1997 by and among SCP Pool Corporation, a Delaware
corporation ("SCP"), South Central Pool Supply, Inc., a Delaware corporation
("Buyer"), Xxxxxxxx Xxxxxx Distributors, Inc., a Massachusetts corporation
("Seller"), Pacific Industries, Inc., a Delaware corporation ("Pacific"), and
Xxxxxxx America, Inc., a Delaware corporation ("Xxxxxxx").
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, the parties referred to above are parties to the Asset Purchase
Agreement dated November 13, 1997, pursuant to which the Buyer is purchasing
substantially all of the business and assets of Seller, and the parties now
desire to amend the Asset Purchase Agreement;
WHEREAS, the terms used herein shall have the meaning set forth in the
Asset Purchase Agreement.
NOW, THEREFORE, the parties agree that the Asset Purchase Agreement is
amended and/or supplemented as follows:
1. Section 1.1(d)(iii) is hereby amended by adding the phrase "and
Section 8.17" after the phrase "Section 8.5" in the second line and the fourth
line of Section 1.1(d)(iii).
2. Section 1.1(d)(v) is hereby amended by deleting the phrase "or
alleged violation" in the second line of Section 1.1(d)(v) and insert in the
fourth line after the word "Person" and before the closed parenthesis the phrase
"or the cost of defending against or disputing any such violation or alleged
violation."
3. Section 1.1(d) is amended by adding an additional paragraph at the
end of Section 1.1(d) as follows:
"Notwithstanding anything in this Section 1.1(d) to the contrary,
any liability arising from the sale of any of the Inventory by the
Buyer after the Closing shall not be deemed an "Excluded Liability"
and shall be deemed to relate to the business and operations of the
Buyer after the Closing, except to the extent any of the Inventory has
been made defective due to the acts of Seller."
4. Section 1.4(a) of the Agreement is hereby amended by deleting the last
sentence in Section 1.4(a) and inserting in its place the following: "The
effective time of the Closing shall be 12:01 a.m. on January 1, 1998."
5. Section 4.1(a) is hereby amended by deleting the second sentence of
Section 4.1(a) and replacing it with the following:
"Seller has full corporate power necessary to own and operate its
properties and business and to conduct its business as presently
conducted."
6. Section 4.16 is hereby amended by adding the following at the end of
Section 4.16:
"(c) Seller has all necessary power and authority and all
licenses, permits and authorizations necessary to own and operate its
properties and business and to conduct its business as presently
conducted."
7. Section 6.1(c) is hereby amended by replacing the date "December 30,
1997" in each place where it is used in Section 6.1(c) with the date "December
31, 1997".
8. Section 7.2(b)(i) is hereby amended by adding after the word "above" in
the second line of Section 7.2(b)(i) the following:
"or, to the extent Section 1.1(d) may be deemed a covenant or
agreement of any of the Xxxxxxx Entities, under Section 7.A(a)(ii)
above".
9. Section 7.2(b)(iii) is hereby amended by adding after the word "above"
in the second line of Section 7.2(b)(iii) the following phrase:
"or, to the extent Section 1.1(d) may be deemed a covenant or
agreement of any of the Xxxxxxx Entities, in subsection (a)(ii)
above".
10. Section 8.14(b) and Section 8.14(c) are hereby amended by replacing the
phrase "Section 8.11" in each of those provisions with the phrase "Section
8.14."
11. Section 8.20 is hereby amended by adding after the phrase "Leased Real
Property" in the second line of Section 8.20 the phrase "(other than the old
Syracuse Lease expiring August 31, 1998)" and adding the phrase "or in a form
2
otherwise agreed upon by the Buyer and Seller" after the word "hereto" in the
second line of Section 8.20.
12. That the definition of "Environmental and Safety Requirements" located
in Section 10.1 is hereby amended by adding at the end of such definition the
phrase "on or prior to the Closing Date".
13. That Schedules 4.7, 4.8(a) and 4.13 attached to the Asset Purchase
Agreement are hereby replaced by the respective Schedules attached hereto as
Schedule 4.7, Schedule 4.8(a) and Schedule 4.13.
14. That the Pacific Supply Agreement attached to the Asset Purchase
Agreement as Exhibit C is hereby deleted and replaced with the Pacific Supply
Agreement attached hereto as Exhibit C.
15. Except as expressly provided herein, the Asset Purchase Agreement shall
remain in full force and effect in accordance with its terms.
3
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the
Asset Purchase Agreement as of the date first written above.
SCP POOL CORPORATION
By: /S/XXXXXX X. XXXXXX
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman
SOUTH CENTRAL POOL SUPPLY, INC.
BY: /S/XXXXXX X. XXXXXX
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman
XXXXXXXX XXXXXX DISTRIBUTORS, INC.
BY: /S/XXXXXX X. XXXXX
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
PACIFIC INDUSTRIES, INC.
BY: /S/XXXXXX X. XXXXX
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXXXX AMERICA, INC.
BY: /S/XXXX X. XXXXXX
-------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SCHEDULE 4.7
------------
ABSENCE OF CERTAIN DEVELOPMENTS
-------------------------------
(1) A major customer of Seller (Clear Blue) currently has certain tax problems
that is likely to result in it filing for bankruptcy and terminating its
operations and any further purchases of product.
(2) It is anticipated that the note receivable of Central Pools & Supplies,
Inc. referenced on Schedule 4.12 will be discharged prior to the Closing
Date upon receipt of final payment.
(3) The Seller is in the process of moving its current Syracuse branch to 000
X. Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxx Xxxx on or about December 1, 1997. The
Seller has entered into a real estate lease with respect to the new
location as set forth on Schedule 4.8(a). Seller will be completing
leasehold improvements in the amount of approximately $156,000. The current
Syracuse lease will expire on August 31, 1998.
(4) Seller has terminated its software contract with its software supplier due
to its acquisition of the software.
(5) The Massachusetts Attorney General's Office has completed an audit of
Seller in 1997 which will require Seller to reclassify approximately 27
employees from exempt to non-exempt status as of January 1, 1998 - See
Schedule 4.17.
(6) Seller anticipates subleasing the Framingham storage facility, which is not
currently being used by Seller.
(7) The Business of Seller may be affected by, and the Xxxxxxx Entities shall
have no responsibility for, changes in the economic condition or climate of
the industry in which the Seller is engaged or the economy in general and,
in particular, the Business is subject to adverse changes in its operations
and operating results due to the seasonal nature of the Business.
(8) Seller entered into a Second Amendment on November 10, 1997 to the Lease
Agreement dated January 1, 1991, amended August 13, 1993, between Elmwood
Realty Associates and Seller relating to the leased premises located at 00
Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx.
8
SCHEDULE 4.8(a)
LEASES AND SUBLEASES
(1) XXXXX XXXXXXX, XXXXXXXXXXXXX--0000 Turnpike Street, Building C. Lease
Agreement dated September 30, 1996 between Nomed Realty Trust and Xxxxxxxx
Xxxxxx Distributors, Inc.; written consent of landlord required to assign.
(2) SYRACUSE, NEW YORK (New)--900 Hiawatha Boulevard, Hiawatha Center. Lease
Agreement dated July 2, 1997 between Xxxx Xxxxxx and Xxxxxxxx Xxxxxx
Distributors, Inc.; written consent of landlord required to assign.
(3) SYRACUSE, NEW YORK (Existing/Old)--1901 Lemoyne Avenue, Salina, New York.
(a) Lease Agreement dated March 21, 1988 between Xxxxxxx-Xxxxxx Realty and
Xxxxxxxx, Incorporated and (b) Modification of Lease Agreement dated
February 24, 1992 between Xxxxxxx-Xxxxxx Realty and Xxxxxxxx Distributors,
Inc. Lease expires August 31, 1998; written consent of the landlord
required to assign.
(4) ALBANY, NEW YORK--45 Industrial Park Road. Lease Agreement dated January
11, 1995 between The Marval Company and Xxxxxxxx Distributors, Inc.;
written consent of landlord required to assign (notice by certified mail);
Landlord has 30 days to approve or can terminate lease.
(5) ZELIENOPLE, PENNSYLVANIA-Xxxxxxxxx Industrial Park North, Building No. 3.
Lease Agreement dated October 4, 1996 between Xxxxxxxxx Industrial Park
North Company and Xxxxxxxx Xxxxxx Distributors, Inc.; written consent of
landlord required to assign.
(6) BRIDGEWATER, NEW JERSEY--Building No. 6E, Central Jersey Industrial Park.
(a) Lease Agreement and (b) Addendum to Lease dated January 9, 1995 between
Edmar Corporation and Xxxxxx Distributors, Inc.; written consent of
landlord required to assign.
(7) XXXXXXX, XXX XXXXXX--000 Xxxxxxxxxx Xxxx. Lease Agreement dated May 1, 1996
between Xxxxxx X. Xxxxxx, Xx. and Xxxxxxxx Xxxxxx Distributors, Inc.;
written consent of landlord required to assign; must deliver to Landlord
full assignment agreement and banking information of assignee/sublessee
adequate to demonstrate financial responsibility.
(8) WINDSOR, CONNECTICUT--436 Hayden Station Road. Lease Agreement dated
January 1, 1994 between The Teacher's Retirement System of the State of
Illinois and Xxxxxxxx Distributors, Inc.; written consent of landlord
required to assign; landlord has right of first refusal to take the
remainder of the lease.
9
(9) PORTLAND, XXXXX-000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxx. (a) Lease Agreement dated
May 30, 1991 between 500 Riverside Associates and Pacific Industries, Inc.
and (b) Assignment and Assumption and Amendment of Lease dated October 1,
1995 between 500 Riverside Associates, Pacific Industries, Inc. and
Xxxxxxxx Distributors, Inc.; written consent of landlord required to
assign.
(10) HOPKINTON, MASSACHUSETTS-12 Parkwood Drive. (a) Lease Agreement dated
January 1, 1991; (b) First Amendment to Lease Agreement dated August 13,
1993 between Realty Associates and Xxxxxxxx Distributors, Inc.; and (c)
Second Amendment to Lease Agreement dated November 10, 1997 between Elmwood
Realty Associates and Xxxxxxxx Xxxxxx Distributors, Inc.; written consent
of landlord required to assign.
(11) BATAVIA, NEW YORK-2 Treadeasy Avenue. Lease Agreement dated January 25,
1995, as amended February 23, 1995 (no formal amendment), between Mega
Properties Corp. and Xxxxxxxx Distributors, Inc.; written consent of
landlord required to assign.
(12) RONKONKOMA, NEW YORK-2133 Ocean Avenue. Lease Agreement dated March 22,
1995 between Lakeland Five Associates and Xxxxxx Distributors, Inc.;
written consent of landlord required to assign.
(13) XXXXXXXXXX, XXXXXXXXXXXXX-000 Cochituate Road. Indenture of Lease dated
January 30, 1974 between Xxxxx X. Xxxxxxxxx, Xx. and Xxxx X. Xxxxx and
Xxxxxxxx, Inc. This Lease is a sublease. Prime Lease is dated January 30,
1974 and is between Xxxxx X. Xxxxxxxxx, Xx. and Xxxx X. Xxxx (as Tenants)
and Shopper's World, Inc. (as Landlord)- written consent of landlord
required to assign.
10
SCHEDULE 4.13
-------------
PROPRIETARY RIGHTS
------------------
(1) The Seller owns the following registered trademarks/servicemarks:
Xxxx Reg. Number Reg. Date
---- ----------- ---------
BICKNELL U.S 954,287 03/06/73
CITATION MA 35,731 09/11/84
stylized letters
CITATION RI 8,494 09/05/84
stylized letters
CITATION SWIMMING MA 35,590 O8/16/84
POOL SUPPLY
CITATION SWIMMING RI 84,814 08/10/84
POOL SUPPLY
HERITAGE POOLS US 925,361 12/14/71
(expired)
SHOCK-IT US 1,092,042 5/30/78
(2) The Seller has used the following common law trade names:
Xxxxxxxx Xxxxxx
Xxxxxx
(3) The Seller has used the following common law servicemark:
BHD with logo
(4) The Seller has used the following brand names:
Heritage
Whale Brand
Note: (a) The Seller has used the common trade name "Xxxxxx" pursuant to a
royalty free non-exclusive perpetual license granted to Seller by Xxxxxx Supply
Company, Inc. to use the name in the pool distribution business under Section
10.3 of the Asset Purchase Agreement dated April 19, 1993 with Xxxxxx Supply
Company, Inc. (see Schedule 4.12).
(b) See License Agreement referenced as Item No. 3 on Schedule 4.12 for
restriction on use of "Xxxxxxxx".
20