AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT dated as of December 20, 2007 by and among certain Subsidiaries of POOL CORPORATION, as Subsidiary Guarantors, in favor of WACHOVIA BANK, NATIONAL ASSOCIATION as Administrative Agent
EXHIBIT 10.49
AMENDED
AND RESTATED SUBSIDIARY GUARANTY AGREEMENT
dated as
of December 20, 2007
by and
among
certain
Subsidiaries of POOL CORPORATION,
as
Subsidiary Guarantors,
in favor
of
WACHOVIA
BANK, NATIONAL ASSOCIATION
as
Administrative Agent
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TABLE
OF CONTENTS
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ARTICLE
I DEFINED
TERMS
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1
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SECTION
1.1
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Definitions
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1
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SECTION
1.2
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Other Definitional
Provisions
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2
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ARTICLE
II GUARANTY
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2
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SECTION
2.1
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Guaranty
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2
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SECTION
2.2
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Bankruptcy Limitations
on each Subsidiary Guarantor
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3
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SECTION
2.3
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Agreements for
Contribution
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3
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SECTION
2.4
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Nature of
Guaranty
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4
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SECTION
2.5
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Waivers
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5
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SECTION
2.6
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Modification of Loan
Documents, etc
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6
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SECTION
2.7
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Demand by the
Administrative Agent
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7
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SECTION
2.8
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Remedies
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8
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SECTION
2.9
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Benefits of
Guaranty
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8
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SECTION
2.10
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Termination;
Reinstatement
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8
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SECTION
2.11
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Payments
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9
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ARTICLE
III REPRESENTATIONS AND
WARRANTIES
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9
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SECTION
3.1
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Existence
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9
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SECTION
3.2
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Authorization of
Agreement; Enforceability
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9
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SECTION
3.3
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No Conflict;
Consents
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10
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SECTION
3.4
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Litigation
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10
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SECTION
3.5
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Title to Properties;
Liens
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10
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SECTION
3.6
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Solvency
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10
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SECTION
3.7
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Compliance with the
Credit Agreement
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11
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ARTICLE
IV MISCELLANEOUS
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11
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SECTION
4.1
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Amendments, Waivers
and Consents
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11
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SECTION
4.2
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Notices
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11
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SECTION
4.3
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Enforcement Expenses,
Indemnification
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11
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SECTION
4.4
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Governing
Law
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12
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SECTION
4.5
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Jurisdiction and
Venue
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12
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SECTION
4.6
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Binding Arbitration;
Waiver of Jury Trial
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13
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SECTION
4.7
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Injunctive Relief;
Punitive Damages
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14
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SECTION
4.8
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No Waiver by Course of
Conduct, Cumulative Remedies
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14
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SECTION
4.9
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Successors and
Assigns
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15
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SECTION
4.10
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Severability
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15
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SECTION
4.11
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Titles and
Captions
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15
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SECTION
4.12
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Counterparts
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15
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SECTION
4.13
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Set-Off
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15
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SECTION
4.14
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Integration
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16
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SECTION
4.15
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Acknowledgements
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16
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SECTION
4.16
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Releases
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16
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SECTION
4.17
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Additional Subsidiary
Guarantors
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16
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SECTION
4.18
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No Strict
Construction
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16
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SECTION
4.19
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Powers Coupled with an
Interest
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17
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SECTION
4.20
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Secured
Parties
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17
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AMENDED AND RESTATED SUBSIDIARY
GUARANTY AGREEMENT, dated as of December 20, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, this “Guaranty”), made by
certain Domestic Subsidiaries (such Subsidiaries, collectively, the “Subsidiary
Guarantors”, each, a “Subsidiary
Guarantor”) of POOL CORPORATION (formerly known as SCP Pool Corporation),
a Delaware corporation (the “US Borrower”), in
favor of WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent (in such
capacity, the “Administrative
Agent”) for the ratable benefit of the Secured Parties (as defined
below).
STATEMENT OF
PURPOSE
Pursuant to the terms of the Amended
and Restated Credit Agreement, dated of even date herewith (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),
by and among 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
financial institutions from time to time parties thereto (the “Lenders”) and the
Administrative Agent, the Lenders have agreed to make Extensions of Credit to
the Borrowers upon the terms and subject to the conditions set forth
therein.
The Borrowers and the Subsidiary
Guarantors, though separate legal entities, comprise one integrated financial
enterprise, and all Extensions of Credit to the Borrowers will inure, directly
or indirectly, to the benefit of each of the Subsidiary Guarantors.
It is a condition precedent to the
obligation of the Lenders to make their respective Extensions of Credit to the
Borrowers under the Credit Agreement that the Subsidiary Guarantors shall have
executed and delivered this Guaranty to the Administrative Agent, for the
ratable benefit of (a) the Administrative Agent and the Lenders and (b) any
party to a Hedging Agreement that was (i) a Lender or (ii) an Affiliate of a
Lender, in each case, at the time such Hedging Agreement was executed
(collectively, the “Secured
Parties”).
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, and to induce the Administrative Agent and the Lenders to
enter into the Credit Agreement and to induce the Lenders to make their
respective Extensions of Credit to the Borrowers thereunder, each Subsidiary
Guarantor hereby agrees with the Administrative Agent, for the ratable benefit
of the Secured Parties, as follows:
ARTICLE
I
DEFINED
TERMS
SECTION 1.1 Definitions. The
following terms when used in this Guaranty shall have the meanings assigned to
them below:
“Applicable Insolvency
Laws” means all Applicable Laws governing bankruptcy, reorganization,
arrangement, adjustment of debts, relief of debtors, dissolution, insolvency,
fraudulent transfers or conveyances or other similar laws (including, without
limitation, 11 U.S.C. Sections 544, 547, 548 and 550 and other “avoidance”
provisions of Title 11 of the United States Code, as amended or
supplemented).
“Guaranteed
Obligations” has the meaning set forth in Section
2.1.
“Guaranty” has the
meaning set forth in the Preamble.
SECTION 1.2 Other Definitional
Provisions. Capitalized terms used and not otherwise defined
in this Guaranty, including the preambles and recitals hereof, shall have the
meanings ascribed to them in the Credit Agreement. In the event of a
conflict between capitalized terms defined herein and in the Credit Agreement,
the Credit Agreement shall control. The words “hereof,” “herein”,
“hereto” and “hereunder” and words of similar import when used in this Guaranty
shall refer to this Guaranty as a whole and not to any particular provision of
this Guaranty, and Section references are to this Guaranty unless otherwise
specified. The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
ARTICLE
II
GUARANTY
SECTION 2.1 Guaranty. Each
Subsidiary Guarantor hereby, jointly and severally with the other Subsidiary
Guarantors, unconditionally guarantees to the Administrative Agent, for the
ratable benefit of the Secured Parties, and their respective permitted
successors, endorsees, transferees and assigns, the prompt payment and
performance of all Obligations, in each case, whether primary or secondary
(whether by way of endorsement or otherwise), whether now existing or hereafter
arising, whether or not from time to time reduced or extinguished (except by
payment thereof) or hereafter increased or incurred, whether or not recovery may
be or hereafter becomes barred by the statute of limitations, whether
enforceable or unenforceable as against such Borrower, whether or not
discharged, stayed or otherwise affected by any Applicable Insolvency Law or
proceeding thereunder, whether created directly with the Administrative Agent or
any other Secured Party or acquired by the Administrative Agent or any other
Secured Party through assignment or endorsement or otherwise, whether matured or
unmatured, whether joint or several, as and when the same become due and payable
(whether at maturity or earlier, by reason of acceleration, mandatory repayment
or otherwise), in accordance with the terms of any such instruments evidencing
any such obligations, including all renewals, extensions or modifications
thereof (all of the foregoing being hereafter collectively referred to as the
“Guaranteed
Obligations”).
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SECTION 2.2 Bankruptcy Limitations on
each Subsidiary Guarantor. Notwithstanding
anything to the contrary contained in Section 2.1, it is
the intention of each Subsidiary Guarantor, the Administrative Agent and the
other Secured Parties that, in any proceeding involving the bankruptcy,
reorganization, arrangement, adjustment of debts, relief of debtors, dissolution
or insolvency or any similar proceeding with respect to any Subsidiary Guarantor
or its assets, the amount of such Subsidiary Guarantor’s obligations with
respect to the Guaranteed Obligations shall be equal to, but not in excess of,
the maximum amount thereof not subject to avoidance or recovery by operation of
Applicable Insolvency Laws after giving effect to Section
2.3. To that end, but only in the event and to the extent that
after giving effect to Section 2.3 such
Subsidiary Guarantor’s obligations with respect to the Guaranteed Obligations or
any payment made pursuant to such Guaranteed Obligations would, but for the
operation of the first sentence of this Section 2.2, be
subject to avoidance or recovery in any such proceeding under Applicable
Insolvency Laws after giving effect to Section 2.3, the
amount of such Subsidiary Guarantor’s obligations with respect to the Guaranteed
Obligations shall be limited to the largest amount which, after giving effect
thereto, would not, under Applicable Insolvency Laws, render such Subsidiary
Guarantor’s obligations with respect to the Guaranteed Obligations unenforceable
or avoidable or otherwise subject to recovery under Applicable Insolvency
Laws. To the extent any payment actually made pursuant to the
Guaranteed Obligations exceeds the limitation of the first sentence of this
Section 2.2 and
is otherwise subject to avoidance and recovery in any such proceeding under
Applicable Insolvency Laws, the amount subject to avoidance shall in all events
be limited to the amount by which such actual payment exceeds such limitation
and the Guaranteed Obligations, as limited by the first sentence of this Section 2.2, shall in
all events remain in full force and effect and be fully enforceable against such
Subsidiary Guarantor. The first sentence of this Section 2.2 is
intended solely to preserve the rights of the Administrative Agent and the other
Secured Parties hereunder against such Subsidiary Guarantor in such proceeding
to the maximum extent permitted by Applicable Insolvency Laws and neither such
Subsidiary Guarantor, any Borrower, any other Subsidiary Guarantor nor any other
Person shall have any right or claim under such sentence that would not
otherwise be available under Applicable Insolvency Laws in such
proceeding.
(a) To
the extent any Subsidiary Guarantor is required, by reason of its obligations
hereunder, to pay to the Administrative Agent or any other Secured Party an
amount greater than the amount of value (as determined in accordance with
Applicable Insolvency Laws) actually made available to or for the benefit of
such Subsidiary Guarantor on account of the Credit Agreement, this Guaranty or
any other Loan Document, such Subsidiary Guarantor shall have an enforceable
right of contribution against the Borrowers and the remaining Subsidiary
Guarantors, and the Borrowers and the remaining Subsidiary Guarantors shall be
jointly and severally liable for repayment of the full amount of such excess
payment. Subject only to the subordination provided in Section 2.3(d), such
Subsidiary Guarantor further shall be subrogated to any and all rights of the
Secured Parties against the Borrowers and the remaining Subsidiary Guarantors to
the extent of such excess payment.
(b) To
the extent that any Subsidiary Guarantor would, but for the operation of this
Section 2.3 and by reason of
its obligations hereunder or its obligations to other Subsidiary Guarantors
under this Section
2.3, be rendered insolvent for any purpose under Applicable Insolvency
Laws, each of the Subsidiary Guarantors hereby agrees to indemnify such
Subsidiary Guarantor and commits to make a contribution to such Subsidiary
Guarantor’s capital in an amount at least equal to the amount necessary to
prevent such Subsidiary Guarantor from having been rendered insolvent by reason
of the incurrence of any such obligations.
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(c) To
the extent that any Subsidiary Guarantor would, but for the operation of this
Section 2.3, be
rendered insolvent under any Applicable Insolvency Law by reason of its
incurring of obligations to any other Subsidiary Guarantor under the foregoing
Sections 2.3(a)
and (b), such
Subsidiary Guarantor shall, in turn, have rights of contribution and indemnity,
to the full extent provided in the foregoing Sections 2.3(a) and
(b), against
the Borrowers and the remaining Subsidiary Guarantors, such that all obligations
of all of the Subsidiary Guarantors hereunder and under this Section 2.3 shall be
allocated in a manner such that no Subsidiary Guarantor shall be rendered
insolvent for any purpose under Applicable Insolvency Law by reason of its
incurrence of such obligations.
(d) Notwithstanding
any payment or payments by any of the Subsidiary Guarantors hereunder, or any
set-off or application of funds of any of the Subsidiary Guarantors by the
Administrative Agent or any other Secured Party, or the receipt of any amounts
by the Administrative Agent or any other Secured Party with respect to any of
the Guaranteed Obligations, none of the Subsidiary Guarantors shall be entitled
to be subrogated to any of the rights of the Administrative Agent or any other
Secured Party against the Borrowers or the other Subsidiary Guarantors or
against any collateral security held by the Administrative Agent or any other
Secured Party for the payment of the Guaranteed Obligations nor shall any of the
Subsidiary Guarantors seek any reimbursement from the Borrowers or any of the
other Subsidiary Guarantors in respect of payments made by such Subsidiary
Guarantor in connection with the Guaranteed Obligations, until all amounts owing
to the Administrative Agent and the other Secured Parties on account of the
Guaranteed Obligations are indefeasibly paid in full in cash and the Commitments
are terminated. If any amount shall be paid to any Subsidiary
Guarantor on account of such subrogation rights at any time when all of the
Guaranteed Obligations shall not have been indefeasibly paid in full in cash and
the Commitments shall not have been terminated, such amount shall be held by
such Subsidiary Guarantor in trust for the Administrative Agent, segregated from
other funds of such Subsidiary Guarantor, and shall, forthwith upon receipt by
such Subsidiary Guarantor, be turned over to the Administrative Agent in the
exact form received by such Subsidiary Guarantor (duly endorsed by such
Subsidiary Guarantor to the Administrative Agent, if required) to be applied
against the Guaranteed Obligations, whether matured or unmatured, in such order
as set forth in the Credit Agreement.
SECTION 2.4 Nature of
Guaranty.
(a) Each
Subsidiary Guarantor agrees that this Guaranty is a continuing, unconditional
guaranty of payment and performance and not of collection, and that its
obligations under this Guaranty shall be primary, absolute and unconditional,
irrespective of, and unaffected by:
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(i)
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the
genuineness, validity, regularity, enforceability or any future amendment
of, or change in, the Credit Agreement, any other Loan Document, any
Hedging Agreement or any other agreement, document or instrument to which
any Borrower, any Subsidiary Guarantor or any of their respective
Subsidiaries or Affiliates is or may become a
party;
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4
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(ii)
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the
absence of any action to enforce this Guaranty, the Credit Agreement, any
other Loan Document or any Hedging Agreement or the waiver or consent by
the Administrative Agent or any other Secured Party with respect to any of
the provisions of this Guaranty, the Credit Agreement, any other Loan
Document or any Hedging Agreement;
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(iii)
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the
existence, value or condition of, or failure to perfect its Lien against,
any security for or other guaranty of the Guaranteed Obligations or any
action, or the absence of any action, by the Administrative Agent or any
other Secured Party in respect of such security or guaranty (including,
without limitation, the release of any such security or
guaranty);
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(iv)
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any
structural change in, restructuring of or other similar organizational
change of any Borrower, any Subsidiary Guarantor, any other guarantors or
any of their respective Subsidiaries or Affiliates;
or
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(v)
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any
other action or circumstances which might otherwise constitute a legal or
equitable discharge or defense of a surety or
guarantor;
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it being
agreed by each Subsidiary Guarantor that, subject to the first sentence of Section 2.2, its
obligations under this Guaranty shall not be discharged until the final
indefeasible payment in cash and performance, in full, of the Guaranteed
Obligations and the termination of the Commitments, provided that a
Subsidiary Guarantor may be released from the Guaranteed Obligations pursuant to
Section 4.16 of
this Guaranty.
(b) Each
Subsidiary Guarantor represents, warrants and agrees that the Guaranteed
Obligations and its obligations under this Guaranty are not and shall not be
subject to any counterclaims, offsets or defenses of any kind against the
Administrative Agent, the other Secured Parties or the Borrowers whether now
existing or which may arise in the future.
(c) Each
Subsidiary Guarantor hereby agrees and acknowledges that the Guaranteed
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guaranty, and all dealings between any Borrower and any Subsidiary
Guarantor, on the one hand, and the Administrative Agent and the other Secured
Parties, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon this Guaranty.
SECTION 2.5 Waivers. To
the extent permitted by Applicable Law, each Subsidiary Guarantor expressly
waives all of the following rights and defenses (and agrees not to take
advantage of or assert any such right or defense):
(a) any
rights it may now or in the future have under any statute (including, without
limitation, North Carolina General Statutes Section 26-7, et seq. or similar
law), or at law or in equity, or otherwise, to compel the Administrative Agent
or any other Secured Party to proceed in respect of the Guaranteed Obligations
against any Borrower, any Subsidiary Guarantor or any other Person or against
any security for or other guaranty of the payment and performance of the
Guaranteed Obligations before proceeding against, or as a condition to
proceeding against, such Subsidiary Guarantor;
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(b) any
defense based upon the failure of the Administrative Agent or any other Secured
Party to commence an action in respect of the Guaranteed Obligations against any
Borrower, any Subsidiary Guarantor or any other Person or any security for the
payment and performance of the Guaranteed Obligations;
(c) any
right to insist upon, plead or in any manner whatever claim or take the benefit
or advantage of, any appraisal, valuation, stay, extension, marshalling of
assets or redemption laws, or exemption, whether now or at any time hereafter in
force, which may delay, prevent or otherwise affect the performance by such
Subsidiary Guarantor of its obligations under, or the enforcement by the
Administrative Agent or the other Secured Parties of this Guaranty;
(d) any
right of diligence, presentment, demand, protest and notice (except as
specifically required herein) of whatever kind or nature with respect to any of
the Guaranteed Obligations and waives, to the fullest extent permitted by
Applicable Law, the benefit of all provisions of Applicable Law which are or
might be in conflict with the terms of this Guaranty; and
(e) any
and all right to notice of the creation, renewal, extension or accrual of any of
the Guaranteed Obligations and notice of or proof of reliance by the
Administrative Agent or any other Secured Party upon, or acceptance of, this
Guaranty.
Each Subsidiary Guarantor agrees that
any notice or directive given at any time to the Administrative Agent or any
other Secured Party which is inconsistent with any of the foregoing waivers
shall be null and void and may be ignored by the Administrative Agent or such
other Secured Party, and, in addition, may not be pleaded or introduced as
evidence in any litigation relating to this Guaranty for the reason that such
pleading or introduction would be at variance with the written terms of this
Guaranty, unless the Administrative Agent and the Required Lenders have
specifically agreed otherwise in writing. The foregoing waivers are
of the essence of the transaction contemplated by the Credit Agreement, the
other Loan Documents and the Hedging Agreements and, but for this Guaranty and
such waivers, the Administrative Agent and the other Secured Parties would
decline to enter into the Credit Agreement, the other Loan Documents and the
Hedging Agreements.
SECTION 2.6 Modification of Loan
Documents, etc. Neither
the Administrative Agent nor any other Secured Party shall incur any liability
to any Subsidiary Guarantor as a result of any of the following, and none of the
following shall impair or release this Guaranty or any of the obligations of any
Subsidiary Guarantor under this Guaranty:
(a) any
change or extension of the manner, place or terms of payment of, or renewal or
alteration of all or any portion of, the Guaranteed Obligations;
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(b) any
action under or in respect of the Credit Agreement, any other Loan Document or
any Hedging Agreement in the exercise of any remedy, power or privilege
contained therein or available to any of them at law, in equity or otherwise, or
waiver or refraining from exercising any such remedies, powers or
privileges;
(c) any
amendment to, or modification of, in any manner whatsoever, the Credit
Agreement, any other Loan Document or any Hedging Agreement;
(d) any
extension or waiver of the time for performance by any Borrower, any Subsidiary
Guarantor or any other Person of, or compliance with, any term, covenant or
agreement on its part to be performed or observed under the Credit Agreement,
any other Loan Document or any Hedging Agreement, or waiver of such performance
or compliance or consent to a failure of, or departure from, such performance or
compliance;
(e) the
taking and holding of security or collateral for the payment of the Guaranteed
Obligations or the sale, exchange, release, disposal of, or other dealing with,
any property pledged, mortgaged or conveyed, or in which the Administrative
Agent or the other Secured Parties have been granted a Lien, to secure any
Indebtedness of any Borrower, any Subsidiary Guarantor or any other Person to
the Administrative Agent or the other Secured Parties;
(f) the
release of anyone who may be liable in any manner for the payment of any amounts
owed by any Borrower, any Subsidiary Guarantor or any other Person to the
Administrative Agent or any other Secured Party;
(g) any
modification or termination of the terms of any intercreditor or subordination
agreement pursuant to which claims of other creditors of any Borrower, any
Subsidiary Guarantor or any other Person are subordinated to the claims of the
Administrative Agent or any other Secured Party; or
(h) any
application of any sums by whomever paid or however realized to any Guaranteed
Obligations owing by any Borrower, any Subsidiary Guarantor or any other Person
to the Administrative Agent or any other Secured Party in such manner as the
Administrative Agent or any other Secured Party shall determine in its
reasonable discretion.
SECTION 2.7 Demand by the Administrative
Agent. In
addition to the terms set forth in this Article II and in no
manner imposing any limitation on such terms, if all or any portion of the then
outstanding Guaranteed Obligations are declared to be immediately due
and payable, then the Subsidiary Guarantors shall, upon demand in writing
therefor by the Administrative Agent to the Subsidiary Guarantors, pay all or
such portion of the outstanding Guaranteed Obligations due hereunder then
declared due and payable. Notwithstanding the foregoing, each
Subsidiary Guarantor agrees that, in the event of the dissolution or insolvency
of any Borrower or any Subsidiary Guarantor, or the inability or failure of any
Borrower or any Subsidiary Guarantor to pay debts as they become due, or an
assignment by any Borrower or any Subsidiary Guarantor for the benefit of
creditors, or the commencement of any case or proceeding in respect of any
Borrower or any Subsidiary Guarantor under bankruptcy, insolvency or similar
laws, and if such event shall occur at a time when any of the Guaranteed
Obligations may not then be due and payable, each Subsidiary Guarantor will pay
to the Administrative Agent, for the ratable benefit of the Secured Parties and
their respective successors, indorsees, transferees and assigns, forthwith the
full amount which would be payable hereunder by each Subsidiary Guarantor if all
such Guaranteed Obligations were then due and payable.
7
SECTION 2.8 Remedies.
Upon the
occurrence and during the continuance of any Event of Default, with the consent
of the Required Lenders, the Administrative Agent may, or upon the request of
the Required Lenders, the Administrative Agent shall, enforce against the
Subsidiary Guarantors their respective obligations and liabilities hereunder and
exercise such other rights and remedies as may be available to the
Administrative Agent hereunder, under the Credit Agreement, the other Loan
Documents, the Hedging Agreements or otherwise.
SECTION 2.9 Benefits of
Guaranty. The
provisions of this Guaranty are for the benefit of the Administrative Agent and
the other Secured Parties and their respective permitted successors,
transferees, endorsees and assigns, and nothing herein contained shall impair,
as between any Borrower, the Administrative Agent and the other Secured Parties,
the obligations of any Borrower under the Credit Agreement, the other Loan
Documents or the Hedging Agreements . In the event all or any part of
the Guaranteed Obligations are transferred, endorsed or assigned by the
Administrative Agent or any other Secured Party to any Person or Persons as
permitted under the Credit Agreement, any reference to an “Administrative Agent”
or “Secured Party” herein shall be deemed to refer equally to such Person or
Persons.
SECTION 2.10 Termination;
Reinstatement.
(a) Subject
to clause (c) below, this Guaranty shall remain in full force and effect until
all the Guaranteed Obligations and all the obligations of the Subsidiary
Guarantors shall have been indefeasibly paid in full in cash and the Commitments
terminated.
(b) No
payment made by any Borrower, any Subsidiary Guarantor or any other Person
received or collected by the Administrative Agent or any other Secured Party
from any Borrower, any Subsidiary Guarantor or any other Person by virtue of any
action or proceeding or any set-off or appropriation or application at any time
or from time to time in reduction of or in payment of the Guaranteed Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of
any Subsidiary Guarantor hereunder which shall, notwithstanding any such payment
(other than any payment made by such Subsidiary Guarantor in respect of the
obligations of the Subsidiary Guarantors or any payment received or collected
from such Subsidiary Guarantor in respect of the obligations of the Subsidiary
Guarantors), remain liable for the obligations of the Subsidiary Guarantors up to the maximum
liability of such Subsidiary Guarantor hereunder until the Guaranteed
Obligations and all the obligations of the Subsidiary Guarantors shall have been
indefeasibly paid in full in cash and the Commitments terminated.
(c) Each
Subsidiary Guarantor agrees that, if any payment made by any Borrower or any
other Person applied to the Guaranteed Obligations is at any time avoided,
annulled, set aside, rescinded, invalidated, declared to be fraudulent or
preferential or otherwise required to be refunded or repaid or is repaid in
whole or in part pursuant to a good faith settlement of a pending or threatened
avoidance claim, or the proceeds of any collateral are required to be refunded
by the Administrative Agent or any other Secured Party to any Borrower, its
estate, trustee, receiver or any other Person, including, without limitation,
any Subsidiary
Guarantor, under any Applicable Law or equitable cause, then, to the extent of
such payment or repayment, each Subsidiary Guarantor’s liability hereunder (and
any Lien or collateral securing such liability) shall be and remain in full
force and effect, as fully as if such payment had never been made, and, if prior
thereto, this Guaranty shall have been canceled or surrendered (and if any Lien
or collateral securing such Subsidiary Guarantor’s liability hereunder shall
have been released or terminated by virtue of such cancellation or surrender),
this Guaranty (and such Lien or collateral) shall be reinstated in full force
and effect, and such prior cancellation or surrender shall not diminish,
release, discharge, impair or otherwise affect the obligations of such
Subsidiary Guarantor in respect of the amount of such payment (or any Lien or
collateral securing such obligation).
8
SECTION 2.11 Payments. Payments
by the Subsidiary Guarantors shall be made to the Administrative Agent to be
credited and applied to the Guaranteed Obligations in accordance with Sections 5.4 and
13.4 of the
Credit Agreement, in immediately available Dollars or Canadian Dollars, as the
case may be, to an account designated by the Administrative Agent or at the
Administrative Agent’s Office or at any other address that may be specified in
writing from time to time by the Administrative Agent.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
To induce the Administrative Agent and
the other Secured Parties to enter into the Loan Documents and Hedging
Agreements and to make any Extensions of Credit, each Subsidiary Guarantor
hereby represents and warrants that:
SECTION
3.1 Existence. Such
Subsidiary Guarantor is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation, has the
power and authority to own its properties and to carry on its business as now
being and hereafter proposed to be conducted and is duly qualified and
authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and
authorization, except where the failure to be qualified or authorized,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. The jurisdictions in which such Subsidiary
Guarantor is organized and qualified to do business as of the Closing Date are
described on Schedule
7.1(a) to the Credit Agreement.
SECTION
3.2 Authorization of
Agreement;
Enforceability. Such
Subsidiary Guarantor has the right, power and authority and has taken all
necessary corporate and other action to authorize the execution, delivery and
performance of this Guaranty in accordance with its terms. This
Guaranty has been duly executed and delivered by the duly authorized officers of
such Subsidiary Guarantor and this Guaranty constitutes the legal, valid and
binding obligation of 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.
9
SECTION
3.3 No Conflict;
Consents. The
execution, delivery and performance by such Subsidiary Guarantor of this
Guaranty, in accordance with its terms, and the transactions contemplated hereby
do not and will not, by the passage of time, the giving of notice or otherwise,
(a) require any Governmental Approval or violate any Applicable Law relating to
such Subsidiary Guarantor; (b) conflict with, result in a breach of or
constitute a default under the articles of incorporation, bylaws or other
organizational documents of such Subsidiary Guarantor or any indenture,
agreement or other instrument to which such Person is a party or by which any of
its properties may be bound or any Governmental Approval relating to such
Person, (c) result in or require the creation or imposition of any Lien upon or
with respect to any property now owned or hereafter acquired by such Subsidiary
Guarantor other than Liens arising under the Loan Documents or (d) require any
consent or authorization of, filing with, or other act in respect of, an
arbitrator or Governmental Authority and no consent of any other Person is
required in connection with the execution, delivery, performance, validity or
enforceability of this Guaranty.
SECTION
3.4 Litigation. Except
for matters existing on the Closing Date and set forth on Schedule 7.1(u) to
the Credit Agreement, there are no actions, suits or proceedings pending nor, to
the knowledge of such Subsidiary Guarantor, threatened against or in any way
relating adversely to or affecting such Subsidiary Guarantor or any of its
properties in any court or before any arbitrator of any kind or before or by any
Governmental Authority that (a) purport to affect or pertain to this Guaranty or
any of the transactions contemplated hereby, or (b) either individually or in
the aggregate, if determined adversely, could reasonably be expected to have a
Material Adverse Effect.
SECTION
3.5 Title to Properties;
Liens. Such
Subsidiary Guarantor has such title to the real property owned or leased by it
as is necessary or desirable to the conduct of its business and valid and legal
title to all of its personal property and assets, including, but not limited to,
those reflected on the balance sheets of the US Borrower and its Subsidiaries
delivered pursuant to the Credit Agreement, except those which have been
disposed of by such Subsidiary Guarantor subsequent to the date of such balance
sheets pursuant to dispositions in the ordinary course of business or as
otherwise expressly permitted under the Credit Agreement. None of the
properties and assets of such Subsidiary Guarantor is subject to any Lien,
except Permitted Liens. No financing statement under the Uniform
Commercial Code of any state or comparable legislation in other jurisdictions
which names such Subsidiary Guarantor or any of its trade names or divisions as
debtor and which has not been terminated, has been filed in any state or other
jurisdiction nor has such Subsidiary Guarantor signed any such financing
statement or any security agreement authorizing any secured party thereunder to
file any such financing statement, except to perfect Permitted
Liens.
SECTION
3.6 Solvency. Subject
in each case to the first sentence of Section 2.2, as of
the Closing Date (or such later date upon which such Subsidiary Guarantor became
a party hereto), and after giving effect to the transactions contemplated
hereby, such Subsidiary Guarantor will be Solvent.
10
SECTION
3.7 Compliance with the Credit
Agreement. Until
the Guaranteed Obligations shall have been paid in full and the Commitments
terminated, such Subsidiary Guarantor shall comply with the provisions
of Articles
IX , X
and XI
of the Credit Agreement as if a party thereto.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.1 Amendments, Waivers and
Consents. None
of the terms, covenants, agreements or conditions of this Guaranty may be
amended, supplemented or otherwise modified, nor may they be waived, nor may any
consent be given, except in accordance with Section 15.2 of the
Credit Agreement.
SECTION
4.2 Notices. All
notices and communications hereunder shall be given to the addresses and
otherwise made in accordance with Section 15.1 of the
Credit Agreement; provided that notices
and communications to the Subsidiary Guarantors shall be directed to the
Subsidiary Guarantors at the address of the US Borrower set forth in Section 15.1(b) of the Credit
Agreement.
SECTION
4.3 Enforcement Expenses,
Indemnification.
(a) The
Subsidiary Guarantors shall, jointly and severally, pay all out-of-pocket
expenses (including, without limitation, reasonable attorney’s fees and
expenses) incurred by the Administrative Agent and each other Secured Party to
the extent the Borrower would be required to do so pursuant to Section 15.3 of
the Credit Agreement.
(b) The
Subsidiary Guarantors shall, jointly and severally, pay and indemnify each
Indemnitee against , and
save each Indemnitee harmless from, Indemnified Taxes and Other Taxes to the
extent the Borrowers would be required to do so pursuant to Section 5.11 of the
Credit Agreement.
(c) The
Subsidiary Guarantors shall, jointly and severally, indemnify each Indemnitee
,and save each
Indemnitee harmless from, to the extent the Borrowers would be required to do so
pursuant to Section
15.3 of the Credit Agreement.
(d) No
Indemnitee referred to in this Section 4.3 shall be
liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Guaranty, any other Loan Document, any Hedging Agreement or the transactions
contemplated hereby or thereby.
(f) The
agreements in this Section 4.3 shall
survive termination of the Commitments and repayment of the Obligations and all
other amounts payable under the Credit Agreement and the other Loan
Documents.
11
(g) All
amounts due under this Section 4.3 shall be
payable promptly after demand therefor.
SECTION
4.4 Governing
Law. This
Guaranty, unless otherwise expressly set forth herein, 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
4.5 Jurisdiction and
Venue.
(a) Jurisdiction. Each
Subsidiary Guarantor hereby irrevocably consents to the personal jurisdiction of
the state and federal courts located in Mecklenburg County, North Carolina (and
any courts from which an appeal from any of such courts must or may be taken),
in any action, claim or other proceeding arising out of any dispute in
connection with this Guaranty, any rights or obligations hereunder, or the
performance of such rights and obligations. Each Subsidiary Guarantor
hereby irrevocably consents to the service of a summons and complaint and other
process in any action, claim or proceeding brought by the Administrative Agent
or any Secured Party in connection with this Guaranty, any rights or obligations
hereunder, or the performance of such rights and obligations, on behalf of
itself or its property, in the manner specified in Section
4.1. Nothing in this Section 4.5 shall
affect the right of the Administrative Agent or any other Secured Party to serve
legal process in any other manner permitted by Applicable Law or affect the
right of the Administrative Agent or any Secured Party to bring any action or
proceeding against any Subsidiary Guarantor or its properties in the courts of
any other jurisdictions.
(b) Venue. Each
Subsidiary Guarantor hereby irrevocably waives any objection it may have now or
in the future to the laying of venue in the aforesaid jurisdiction in any
action, claim or other proceeding arising out of or in connection with this
Guaranty or the rights and obligations of the parties hereunder. Each
Subsidiary Guarantor irrevocably waives, in connection with such action, claim
or proceeding, any plea or claim that the action, claim or proceeding has been
brought in an inconvenient forum.
12
SECTION
4.6 Binding Arbitration; Waiver
of Jury Trial.
(a) Binding
Arbitration. Upon demand of any party, whether made before or
after institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to this Guaranty or any other Loan
Document (each a “Dispute”) between or
among parties hereto and to the other Loan Documents shall be resolved by
binding arbitration as provided herein. Institution of a judicial
proceeding by a party does not waive the right of that party to demand
arbitration hereunder. A Dispute may include, without limitation,
tort claims, counterclaims, claims brought as class actions, claims arising from
Loan Documents executed in the future, disputes as to whether a matter is
subject to arbitration, or claims concerning any aspect of the past, present or
future relationships arising out of or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the
Commercial Financial Disputes Arbitration Rules (the “Arbitration Rules”)
of the American Arbitration Association (the “AAA”) and the Federal
Arbitration Act. All arbitration hearings shall be conducted in
Charlotte, North Carolina. The expedited procedures set forth in Rule
51, et seq. of the
Arbitration Rules shall be applicable to claims of less than
$1,000,000. All applicable statutes of limitations shall apply to any
Dispute. A judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding anything foregoing to the contrary, any
arbitration proceeding demanded hereunder shall begin within ninety (90) days
after such demand thereof and shall be concluded within one hundred twenty (120)
days after such demand. These time limitations may not be extended
unless a party hereto shows cause for extension and then such extension shall
not exceed a total of sixty (60) days. The panel from which all
arbitrators are selected shall be comprised of licensed attorneys selected from
the Commercial Financial Dispute Arbitration Panel of the AAA. The
single arbitrator selected for expedited procedure shall be a retired judge from
the highest court of general jurisdiction, state or federal, of the state where
the hearing will be conducted. The parties hereto do not waive any
applicable Federal or state substantive law except as provided
herein. Notwithstanding the foregoing, this subsection shall not
apply to any Hedging Agreement.
(b) Jury Trial. EACH PARTY HERETO HEREBY
ACKNOWLEDGES THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY
WAIVED THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM
OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS GUARANTY
OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER,
OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain
Remedies. Notwithstanding the preceding binding arbitration
provisions, the parties hereto and the other Loan Documents preserve, without
diminution, certain remedies that such Persons may employ or exercise freely,
either alone, in conjunction with or during a Dispute. Each such
Person shall have and hereby reserves the right to proceed in any court of
proper jurisdiction or by self help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any real
or personal property or other security by exercising a power of sale granted in
the Loan Documents or under Applicable Law or by judicial foreclosure and sale,
including a proceeding to confirm the sale, (ii) all rights of self help
including peaceful occupation of property and collection of rents, set off, and
peaceful possession of property, (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and in filing an involuntary bankruptcy proceeding, and
(iv) when applicable, a judgment by confession of
judgment. Preservation of these remedies does not limit the power of
an arbitrator to grant similar remedies that may be requested by a party in a
Dispute.
13
SECTION
4.7 Injunctive Relief; Punitive
Damages.
(a) Each
Subsidiary Guarantor recognizes that, in the event such Subsidiary Guarantor
fails to perform, observe or discharge any of its obligations or liabilities
under this Guaranty, any remedy of law may prove to be inadequate relief to the
Administrative Agent and the other Secured Parties. Therefore, each Subsidiary
Guarantor agrees that the Administrative Agent and the other Secured Parties, at
the Administrative Agent’s or the Required Lenders’ option, shall be entitled to
temporary and permanent injunctive relief in any such case without the necessity
of proving actual damages.
(b) The
Administrative Agent, the other Secured Parties and each Subsidiary Guarantor
hereby agree that no such Person shall have a remedy of punitive, exemplary or
consequential damages against any other party to a Loan Document or a Hedging
Agreement and each such Person hereby waives any right or claim to punitive or
exemplary damages that such Person may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
SECTION
4.8 No Waiver by Course of
Conduct, Cumulative Remedies. Neither
the Administrative Agent nor any other Secured Party shall by any act (except by
a written instrument pursuant to Section 4.1), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default. No delay or
failure to take action on the part of the Administrative Agent or any other
Secured Party in exercising any right, power or privilege shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege or shall be construed to be a
waiver of any Event of Default.. No course of dealing between any
Subsidiary Guarantor, the Administrative Agent and the other Secured Parties or
their respective agents or employees shall be effective to change, modify or
discharge any provision of this Guaranty or to constitute a waiver of any Event
of Default. The enumeration of the rights and remedies of the
Administrative Agent and the other Secured Parties set forth in this Guaranty is
not intended to be exhaustive and the exercise by the Administrative Agent and
the other Secured Parties of any right or remedy shall not preclude the exercise
of any other rights or remedies, all of which shall be cumulative, and shall be
in addition to any other right or remedy given hereunder or under the other Loan
Documents or that may now or hereafter exist at law or in equity or by suit or
otherwise.
14
SECTION
4.9 Successors and
Assigns. This
Guaranty shall be binding upon and inure to the benefit of each of the parties
hereto and its permitted successors and assigns (and shall bind all Persons who
become bound as a Subsidiary Guarantor under this Guaranty), except that no
Subsidiary Guarantor may assign or otherwise transfer any of its rights or
obligations under this Guaranty without the prior written consent of the
Administrative Agent and the other Secured Parties (given in accordance with the
Credit Agreement).
SECTION
4.10 Severability. Any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other
jurisdiction.
SECTION 4.11 Titles and
Captions. Titles
and captions of Articles, Sections and subsections in, and the table of contents
of, this Guaranty are for convenience only, and neither limit nor amplify the
provisions of this Guaranty.
SECTION 4.12 Counterparts. This
Guaranty 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 shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to
this Guaranty or any document or instrument delivered in connection herewith by
facsimile or other electronic transmission shall be effective as delivery of a
manually executed counterpart of this Guaranty or such other document or
instrument, as applicable.
SECTION 4.13 Set-Off. If
an Event of Default shall have occurred and be continuing,
each Secured Party and each of its Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by Applicable
Law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Secured Party or
any such Affiliate to or for the credit or the account of the applicable
Subsidiary Guarantor against any and all of the obligations of the such
Subsidiary Guarantor now or hereafter existing under this Guaranty or any other
Loan Document to such Secured Party, irrespective of whether or not such Secured
Party shall have made any demand under this Guaranty or any other Loan Document
and although such obligations of such Subsidiary Guarantor may be contingent or
unmatured or are owed to a branch or office of such Secured Party different from
the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Secured Party and its Affiliates
under this Section are in addition to other rights and remedies (including other
rights of setoff) that such Secured Party or its Affiliates may
have. Each Secured Party agrees to notify the applicable Subsidiary
Guarantor and the Administrative Agent promptly after any such setoff and
application; provided that the
failure to give such notice shall not affect the validity of such setoff and
application.
15
SECTION 4.14 Integration. This
Guaranty, together with the other Loan Documents comprises the complete and
integrated agreement of the parties on the subject matter hereof and thereof and
supersedes all prior agreements, written or oral, on such subject
matter. In the event of any conflict between the provisions of this
Guaranty and the Credit Agreement, the provisions of the Credit Agreement shall
control and in the event of any conflict between the provisions of this Guaranty
and those of any other document (other than the Credit Agreement), the
provisions of this Guaranty shall control; provided that the
inclusion of supplemental rights or remedies in favor of the Administrative
Agent or the other Secured Parties in any other document shall not be deemed a
conflict with this Guaranty.
SECTION 4.15 Acknowledgements Each
Subsidiary Guarantor hereby acknowledges that:
(a) it
has been advised by counsel in the negotiation, execution and delivery of this
Guaranty and the other Loan Documents to which it is a party;
(b) it
has received a copy of the Credit Agreement and has reviewed and understands the
same;
(c) neither
the Administrative Agent nor any other Secured Party has any fiduciary
relationship with or duty to any Subsidiary Guarantor arising out of or in
connection with this Guaranty or any of the other Loan Documents, and the
relationship between the Subsidiary Guarantors, on the one hand, and the
Administrative Agent and the other Secured Parties, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor;
and
(d) no
joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby or thereby among the
Secured Parties or among the Subsidiary Guarantors and the Secured
Parties.
SECTION 4.16 Releases. At
such time as (a) the Guaranteed Obligations shall have been indeafeasibly paid
in full in cash and the Commitments have been terminated, this Guaranty and all
obligations (other than those expressly stated to survive such termination or as
may be reinstated after such termination) of the Administrative Agent and each
Subsidiary Guarantor hereunder shall terminate, all without delivery of any
instrument or performance of any act by any party or (b) a Subsidiary Guarantor
ceases to be a Subsidiary of a Borrower in connection with a transaction
expressly permitted under the terms and conditions of the Credit Agreement, such
Subsidiary Guarantor shall be released from the Guaranteed
Obligations.
SECTION 4.17 Additional Subsidiary
Guarantors. Each
Domestic Subsidiary of a Borrower that is required to become a party to this
Guaranty pursuant to Section 9.11 of the
Credit Agreement shall become a Subsidiary Guarantor for all purposes of this
Guaranty upon execution and delivery by such Subsidiary of a supplement in form
and substance satisfactory to the Administrative Agent.
SECTION 4.18 No Strict
Construction. The
parties hereto have participated jointly in the negotiation and drafting of this
Guaranty. In the event an ambiguity or question of intent or
interpretation arises, this Guaranty shall be construed as if drafted jointly by
the parties hereto and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Guaranty.
16
SECTION 4.19 Powers Coupled with an
Interest. All
powers of attorney and other authorizations granted to the Secured Parties, the
Administrative Agent and any Persons designated by the Administrative Agent or
any other Secured Party pursuant to any provisions of this Guaranty or any of
the other Loan Documents shall be deemed coupled with an interest and shall be
irrevocable so long as any of the Guaranteed Obligations remain unpaid or
unsatisfied, any of the Commitments remain in effect or the Credit Facility has
not been terminated.
SECTION 4.20 Secured
Parties. Each
Secured Party not a party to the Credit Agreement who obtains the benefit of
this Guaranty shall be deemed to have acknowledged and accepted the appointment
of the Administrative Agent pursuant to the terms of the Credit Agreement, and
agrees that with respect to the actions and omissions of the Administrative
Agent hereunder or otherwise relating hereto that do or may affect such Secured
Party, the Administrative Agent and each of its Affiliates shall be entitled to
all the rights, benefits and immunities conferred under Article XIII of the
Credit Agreement.
[Signature
Pages to Follow]
17
IN
WITNESS WHEREOF, each of the Subsidiary Guarantors has executed and delivered
this Guaranty under seal by their duly authorized officers, all as of the day
and year first above written.
|
|
SCP
DISTRIBUTORS LLC, as Subsidiary
Guarantor
|
By: /s/
▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President and
CFO
|
|
ALLIANCE
TRADING, INC., as Subsidiary
Guarantor
|
By: /s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: President
|
|
CYPRESS,
INC., as Subsidiary
Guarantor
|
By: /s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: President
|
|
SUPERIOR
POOL PRODUCTS LLC, as Subsidiary
Guarantor
|
By: /s/
▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice
President
[Signature
Pages Continue]
|
|
SCP
ACQUISITION CO. LLC, as Subsidiary
Guarantor
|
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice
President
|
|
SCP
INTERNATIONAL, INC., as Subsidiary
Guarantor
|
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice
President
|
|
POOL
DEVELOPMENT LLC, as Subsidiary
Guarantor
|
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice President and
CFO
|
|
SPLASH
HOLDINGS, INC. (formerly known
|
| as FORT ▇▇▇▇▇ POOLS, INC.), | |
|
|
as
Subsidiary Guarantor
|
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice
President
|
|
HORIZON
DISTRIBUTORS, INC., as Subsidiary
Guarantor
|
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice
President
[Signature
Pages Continue]
|
|
POOLCORP
FINANCIAL MORTGAGE, LLC as Subsidiary
Guarantor
|
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: President and
Treasurer
|
|
POOLCORP
FINANCIAL INC., as Subsidiary
Guarantor
|
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: President and
Treasurer
| WACHOVIA BANK, NATIONAL ASSOCIATION, | |
|
|
as
Administrative Agent
|
By: /s/
Authorized Signatory
Name: Authorized
Signatory
Title: