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Amended And Restated Subsidiary Guaranty

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Sectors: Consumer Products (Durables)
Governing Law: North Carolina, View North Carolina State Laws
Effective Date: December 20, 2007
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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 ").





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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.



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.





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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:



(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;






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(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;





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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
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