EXHIBIT
10.2
SUBSIDIARY GUARANTY
THIS GUARANTY (this
“Guaranty”) dated as of February 1, 2007 is made by the
undersigned (each, a “Guarantor”), in favor of the
holders from time to time of the Notes hereinafter referred to,
including each purchaser named in the Note Purchase Agreement
hereinafter referred to, and their respective successors and
assigns (collectively, the “Holders” and each
individually, a “Holder”).
W I T N
E S S E
T H :
WHEREAS, Pool
Corporation, a Delaware corporation (the “Company”),
and the initial Holders have entered into a Note Purchase Agreement
dated as of February 1, 2007 (the Note Purchase Agreement as
amended, restated or otherwise modified from time to time in
accordance with its terms and in effect, the “Note Purchase
Agreement”);
WHEREAS, the Note
Purchase Agreement provides for the issuance by the Company of
$100,000,000 aggregate principal amount of Notes (as defined in the
Note Purchase Agreement);
WHEREAS, the Company
directly or indirectly owns all or a substantial portion of the
issued and outstanding capital stock of each Guarantor and, by
virtue of such ownership and otherwise, each Guarantor will derive
substantial benefits from the purchase by the Holders of the
Company’s Notes;
WHEREAS, it is a
condition precedent to the obligation of the Holders to purchase
the Notes that each Guarantor shall have executed and delivered
this Guaranty to the Holders; and
WHEREAS, each
Guarantor desires to execute and deliver this Guaranty to satisfy
the conditions described in the preceding paragraph;
NOW, THEREFORE, in
consideration of the premises and other benefits to each Guarantor,
and of the purchase of the Company’s Notes by the Holders,
and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, each Guarantor makes this
Guaranty as follows:
SECTION 1.
Definitions . Any capitalized terms not otherwise herein
defined shall have the meanings attributed to them in the Note
Purchase Agreement.
SECTION 2.
Guaranty . Each Guarantor, jointly and severally with each
other Guarantor, unconditionally and irrevocably guarantees to the
Holders the due, prompt and complete payment by the Company of the
principal of, make-whole amount, if any, prepayment premium, if
any, breakage amount, if any, and interest on, and each other
amount due under, the Notes or the Note Purchase Agreement, when
and as the same shall become due and payable (whether at stated
maturity or by required or optional prepayment or by acceleration
or otherwise) in accordance with the terms of the Notes and the
Note Purchase Agreement (the Notes and the Note Purchase Agreement
being sometimes hereinafter collectively referred to as the
“Note Documents” and the amounts payable by the Company
under the Note Documents, and all other monetary obligations of the
Company thereunder (including any attorneys’ fees and
expenses), being sometimes collectively hereinafter referred to as
the “Obligations”). This Guaranty is a guaranty of
payment and not just of collectibility and is in no way conditioned
or contingent upon any attempt to collect from the Company or upon
any other event, contingency or circumstance whatsoever. If for any
reason whatsoever the Company shall fail or be unable duly,
punctually and fully to pay such amounts as and when the same shall
become due and payable, each Guarantor, without demand,
presentment, protest or notice of any kind, will forthwith pay or
cause to be paid such amounts to the Holders under the terms of
such Note Documents, in lawful money of the United States, at the
place specified in the Note Purchase Agreement, or perform or
comply with the same or cause the same to be performed or complied
with, together with interest (to the extent provided for under such
Note Documents) on any amount due and owing from the Company. Each
Guarantor, promptly after demand, will pay to the Holders the
reasonable costs and expenses of collecting such amounts or
otherwise enforcing this Guaranty, including, without limitation,
the reasonable fees and expenses of counsel. Notwithstanding the
foregoing, the right of recovery against each Guarantor under this
Guaranty is limited to the extent it is judicially determined with
respect to any Guarantor that entering into this Guaranty would
violate Section 548 of the United States Bankruptcy Code or any
comparable provisions of any state law, in which case such
Guarantor shall be liable under this Guaranty only for amounts
aggregating up to the largest amount that would not render such
Guarantor’s obligations hereunder subject to avoidance under
Section 548 of the United States Bankruptcy Code or any comparable
provisions of any state law.
SECTION 3.
Guarantor’s Obligations Unconditional . The
obligations of each Guarantor under this Guaranty shall be primary,
absolute and unconditional obligations of each Guarantor, shall not
be subject to any counterclaim, set-off, deduction, diminution,
abatement, recoupment, suspension, deferment, reduction or defense
based upon any claim each Guarantor or any other person may have
against the Company or any other person, and to the full extent
permitted by applicable law shall remain in full force and effect
without regard to, and shall not be released, discharged or in any
way affected by, any circumstance or condition whatsoever (whether
or not each Guarantor or the Company shall have any knowledge or
notice thereof), including:
(a) any termination, amendment or
modification of or deletion from or addition or supplement to or
other change in any of the Note Documents or any other instrument
or agreement applicable to any of the parties to any of the Note
Documents;
(b) any furnishing or acceptance of any
security, or any release of any security, for the Obligations, or
the failure of any security or the failure of any person to perfect
any interest in any collateral;
(c) any failure, omission or delay on the
part of the Company to conform or comply with any term of any of
the Note Documents or any other instrument or agreement referred to
in paragraph (a) above, including, without limitation, failure to
give notice to any Guarantor of the occurrence of a
“Default” or an “Event of Default” under
any Note Document;
(d) any waiver of the payment,
performance or observance of any of the obligations, conditions,
covenants or agreements contained in any Note Document, or any
other waiver, consent, extension, indulgence, compromise,
settlement, release or other action or inaction under or in respect
of any of the Note Documents or any other instrument or agreement
referred to in paragraph (a) above or any obligation or liability
of the Company, or any exercise or non-exercise of any right,
remedy, power or privilege under or in respect of any such
instrument or agreement or any such obligation or liability;
(e) any failure, omission or delay on the
part of any of the Holders to enforce, assert or exercise any
right, power or remedy conferred on such Holder in this Guaranty,
or any such failure, omission or delay on the part of such Holder
in connection with any Note Document, or any other action on the
part of such Holder;
(f) any voluntary or involuntary
bankruptcy, insolvency, reorganization, arrangement, readjustment,
assignment for the benefit of creditors, composition, receivership,
conservatorship, custodianship, liquidation, marshaling of assets
and liabilities or similar proceedings with respect to the Company,
any Guarantor or to any other person or any of their respective
properties or creditors, or any action taken by any trustee or
receiver or by any court in any such proceeding;
(g) any discharge, termination,
cancellation, frustration, irregularity, invalidity or
unenforceability, in whole or in part, of any of the Note Documents
or any other agreement or instrument referred to in paragraph (a)
above or any term hereof;
(h) any merger or consolidation of the
Company or any Guarantor into or with any other corporation, or any
sale, lease or transfer of any of the assets of the Company or any
Guarantor to any other person;
(i) any change in the ownership of any
shares of capital stock of the Company or any change in the
corporate relationship between the Company and any Guarantor, or
any termination of such relationship;
(j) any release or discharge, by
operation of law, of any Guarantor from the performance or
observance of any obligation, covenant or agreement contained in
this Guaranty; or
(k) any other occurrence, circumstance,
happening or event whatsoever, whether similar or dissimilar to the
foregoing, whether foreseen or unforeseen, and any other
circumstance which might otherwise constitute a legal or equitable
defense or discharge of the liabilities of a guarantor or surety or
which might otherwise limit recourse against any Guarantor.
SECTION 4. Full
Recourse Obligations . The obligations of each Guarantor set
forth herein constitute the full recourse obligations of such
Guarantor enforceable against it to the full extent of all its
assets and properties.
SECTION 5.
Waiver . Each Guarantor unconditionally waives, to the
extent permitted by applicable law, (a) notice of any of the
matters referred to in Section 3, (b) notice to such Guarantor
of the incurrence of any of the Obligations, notice to such
Guarantor or the Company of any breach or default by such Guarantor
or the Company with respect to any of the Obligations or any other
notice that may be required, by statute, rule of law or otherwise,
to preserve any rights of the Holders against such Guarantor,
(c) presentment to or demand of payment from the Company or
the Guarantor with respect to any amount due under any Note
Document or protest for nonpayment or dishonor, (d) any right
to the enforcement, a
