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
|
TABLE
OF CONTENTS
|
|
|
|
|
|
ARTICLE
I DEFINED
TERMS
|
1
|
|
SECTION
1.1
|
Definitions
|
1
|
|
SECTION
1.2
|
Other Definitional Provisions
|
2
|
|
|
|
|
|
ARTICLE
II GUARANTY
|
2
|
|
SECTION
2.1
|
Guaranty
|
2
|
|
SECTION
2.2
|
Bankruptcy Limitations on each Subsidiary
Guarantor
|
3
|
|
SECTION
2.3
|
Agreements for Contribution
|
3
|
|
SECTION
2.4
|
Nature of Guaranty
|
4
|
|
SECTION
2.5
|
Waivers
|
5
|
|
SECTION
2.6
|
Modification of Loan Documents, etc
|
6
|
|
SECTION
2.7
|
Demand by the Administrative Agent
|
7
|
|
SECTION
2.8
|
Remedies
|
8
|
|
SECTION
2.9
|
Benefits of Guaranty
|
8
|
|
SECTION
2.10
|
Termination; Reinstatement
|
8
|
|
SECTION
2.11
|
Payments
|
9
|
|
|
|
|
|
ARTICLE
III REPRESENTATIONS
AND WARRANTIES
|
9
|
|
SECTION
3.1
|
Existence
|
9
|
|
SECTION
3.2
|
Authorization of Agreement; Enforceability
|
9
|
|
SECTION
3.3
|
No Conflict; Consents
|
10
|
|
SECTION
3.4
|
Litigation
|
10
|
|
SECTION
3.5
|
Title to Properties; Liens
|
10
|
|
SECTION
3.6
|
Solvency
|
10
|
|
SECTION
3.7
|
Compliance with the Credit Agreement
|
11
|
|
|
|
|
|
ARTICLE
IV MISCELLANEOUS
|
11
|
|
SECTION
4.1
|
Amendments, Waivers and Consents
|
11
|
|
SECTION
4.2
|
Notices
|
11
|
|
SECTION
4.3
|
Enforcement Expenses,
Indemnification
|
11
|
|
SECTION
4.4
|
Governing Law
|
12
|
|
SECTION
4.5
|
Jurisdiction and Venue
|
12
|
|
SECTION
4.6
|
Binding Arbitration; Waiver of Jury Trial
|
13
|
|
SECTION
4.7
|
Injunctive Relief; Punitive Damages
|
14
|
|
SECTION
4.8
|
No Waiver by Course of Conduct, Cumulative
Remedies
|
14
|
|
SECTION
4.9
|
Successors and Assigns
|
15
|
|
SECTION
4.10
|
Severability
|
15
|
|
SECTION
4.11
|
Titles and Captions
|
15
|
|
SECTION
4.12
|
Counterparts
|
15
|
|
SECTION
4.13
|
Set-Off
|
15
|
|
SECTION
4.14
|
Integration
|
16
|
|
SECTION
4.15
|
Acknowledgements
|
16
|
|
SECTION
4.16
|
Releases
|
16
|
|
SECTION
4.17
|
Additional Subsidiary Guarantors
|
16
|
|
SECTION
4.18
|
No Strict Construction
|
16
|
|
SECTION
4.19
|
Powers Coupled with an Interest
|
17
|
|
SECTION
4.20
|
Secured Parties
|
17
|
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 ”).
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.
SECTION
2.3 Agreements for
Contribution .
(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.
(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:
|
(i)
|
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;
|
|
(ii)
|
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;
|
|
(iii)
|
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);
|
|
(iv)
|
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
|
|
(v)
|
any
other action or circumstances which might otherwise constitute a
legal or equitable discharge or defense of a surety or
guarantor;
|
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;
(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;
(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
