CONSENT AND AMENDMENT NO. 5 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT Dated as of December 31, 1997
EXHIBIT 10.30
CONSENT AND AMENDMENT NO. 5 TO
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of December 31, 1997
THIS CONSENT AND AMENDMENT NO. 5 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT ("Amendment") is made as
of the 28th day of December, 2000 by and among SOUTH CENTRAL POOL SUPPLY, INC., a Delaware corporation (the
"Borrower"), the financial institutions listed on the signature pages hereof (the "Lenders") and LASALLE BANK
NATIONAL ASSOCIATION, in its individual capacity as a Lender and in its capacity as agent ("Agent") under that
certain Third Amended and Restated Credit Agreement dated as of December 31, 1997 by and among the Borrower, the
Lenders and the Agent (as amended, the "Credit Agreement") and each of the Persons identified on the signature
pages hereto as a Loan Party (individually, a "Loan Party" and collectively, the "Loan Parties"). Capitalized
terms used herein and not otherwise defined herein shall have the meaning given to them in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrower, the Lenders and the Agent are parties to the Credit Agreement;
WHEREAS, Agent and the Required Lenders desire to consent to (i) the acquisition by Borrower of
substantially all of the assets of Pool Rite, Inc., a Florida corporation ("Pool Rite"), and Pool Rite II, Inc.,
a Florida corporation ("Pool Rite II"), in accordance with the terms of the Asset Purchase Agreement dated
October 26, 2000 (the "Pool Rite Acquisition"), (ii) the conversion of Borrower (the "Conversion") from a
Delaware corporation to a Delaware limited liability company pursuant to Section 266 of the Delaware General
Corporation Law and the renaming of Borrower to SCP Distributors, LLC, and (iii) the merger of SCP Finance Co.
with and into SCP Property Co. (the "Merger"), all on the terms and subject to the conditions set forth herein;
and
WHEREAS, the Borrower, the Lenders and the Agent have agreed to amend the Credit Agreement on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the agreements, provisions and covenants herein
contained, Borrower, Agent, and the Lenders agree as follows:
1. Consent. Subject to the terms and provisions of this Amendment, Agent and Lenders hereby
consent to the following:
a. the Pool Rite Acquisition and Borrower's use of proceeds of Revolving Loans to complete the
same;
b. the Conversion; and
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c. the Merger, it being understood and agreed that upon consummation of the Merger, the
Subordinated Intercompany Indebtedness will be owned by, and owed to, SCP Property Co.
2. Amendments to Credit Agreement. Subject to the prior satisfaction of the conditions set forth
in Section 3 below, Agent, the Lenders, and Borrower hereby agree to amend the Credit Agreement as follows:
1. Section 1.1 is amended by deleting the definitions of Capital Stock and Restricted Junior Payment and
substituting the following therefor:
"Capital Stock", with respect to any Person, means any capital stock, partnership interests,
limited liability company interests or units or other equity security of such Person,
regardless of class or designation, and all warrants, options, purchase rights, conversion or
exchange rights, voting rights, calls or claims of any character with respect thereto."
"Restricted Junior Payment" means (i) any dividend or other distribution, direct or indirect,
on account of any Capital Stock of the Borrower now or hereafter outstanding, except a dividend
payable solely in shares, interests, units or the like of that class of security or in any
junior class of security to the holders of that class, (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value, direct or indirect, of any
Capital Stock of the Borrower or any of its Subsidiaries now or hereafter outstanding, (iii)
any payment or prepayment of principal of, premium, if any, or interest, fees or other charges
on or with respect to, and any redemption, purchase, repurchase, retirement, defeasance,
sinking fund or similar payment and any claim for rescission with respect to any Permitted
Subordinated Indebtedness, (iv) any payment made to redeem, purchase, repurchase or retire, or
to obtain the surrender of, any outstanding warrants, options or other rights to acquire any
Capital Stock of the Borrower or any of its Subsidiaries now or hereafter outstanding, (v) any
payment of a claim for the rescission of the purchase or sale of, or for material damages
arising from the purchase or sale of any Permitted Subordinated Indebtedness or any Capital
Stock of Holdings, Borrower or any of Borrower's Subsidiaries or of a claim for reimbursement,
indemnification or contribution arising out of or related to any such claim for damages or
recission and (vi) any payment of management fees to Holdings, CHS or any of their Affiliates."
2. Section 5.1 is deleted in its entirety and the following is substituted therefor:
"5.1 Organization; Corporate Powers. The Borrower and each of its Subsidiaries (i) is a
corporation, partnership, limited liability company or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its incorporation,
formation or organization, (ii) is duly qualified to do business as a foreign corporation,
partnership, limited liability company or other entity and its in good standing under the laws
of each jurisdiction in which failure to be so qualified and in good standing will have a
Material Adverse Effect, (iii) has filed and maintained effective (unless exempt from the
requirements for filing) a current Business Activity Report with the appropriate Governmental
Authority in the States in which it is required to do and (iv) has all requisite corporate,
partnership, limited liability company or other requisite power and authority to own operate
and encumber its property and to conduct its business as presently conducted and as proposed to
be conducted."
3. Sections 5.2(A) and (B) are deleted in their entirety and the following is substituted therefor:
"5.2 Authority.
(A) The Borrower and each of its Subsidiaries have or had, as applicable, the
requisite corporate, partnership, limited liability company or other requisite power and
authority (i) to execute, deliver and perform each of the Transaction Documents to which it is
a party and (ii) to file the Transaction Documents which must be filed by it with any
Governmental Authority.
(B) The execution, delivery, performance and filing, as the case may be, of each
of the Transaction Documents to which the Borrower or any of its Subsidiaries is a party, and
the consummation of the transactions contemplated thereby, have been duly approved by the
respective boards of directors or other governing body and, if necessary, the shareholders,
partners, members or other equity security holders, as applicable, of the Borrower and its
Subsidiaries, and such approvals have not been rescinded. No other corporate, partnership,
limited liability company or other requisite action or proceedings on the part of the Borrower
or its Subsidiaries are necessary to consummate such transactions."
4. Section 5.3 is deleted in its entirety and the following is substituted therefor:
"5.3 No Conflict, Governmental Consents. The execution, delivery and performance of each
of the Loan Documents and other Transaction Documents to which the Borrower or any of its
Subsidiaries is a party do not and will not (i) conflict with the certificate or articles of
incorporation, by-laws, partnership agreement, limited liability company agreement or other
organizational document of the Borrower or any such Subsidiary, (ii) constitute a tortious
interference with any Contractual Obligation of any Person or conflict with, result in a breach
of or constitute (with or without notice or lapse of time or both) a default under any
Requirement of Law (including, without limitation, any Environmental Property Transfer Act) or
Contractual Obligation of the Borrower or any such Subsidiary, or require termination of any
Contractual Obligation, except such interference, breach, default or termination which
individually or in the aggregate would not reasonably be expected to have a Material Adverse
Effect, (iii) with respect to the Loan Documents and, to the best of Borrower's and its
Subsidiaries' knowledge with respect to the other Transaction Documents, result in or require
the creation or imposition of any Lien whatsoever upon any of the property or assets of the
Borrower or any such Subsidiary, other than Liens permitted by the Loan Documents, or (iv)
require any approval of the Borrower's or any such Subsidiary's shareholders, partners, members
or other equity security holders except such as have been obtained. Except as set forth on
Schedule 5.3 to this Agreement, the execution, delivery and performance of each of the
Transaction Documents to which the Borrower or any of its Subsidiaries is a party do not and
will not require any registration with, consent or approval of, or notice to, or other action
to, with or by any Governmental Authority, including under any Environmental Property Transfer
Act, except filings, consents or notices which have been made, obtained or given, or which, if
not made, obtained or given, individually or in the aggregate would not reasonably be expected
to have a Material Adverse Effect."
5. Section 5.8 is deleted in its entirety and the following is substituted therefor:
"5.8 Subsidiaries. Schedule 5.8 to this Agreement (i) contains a description of the
corporate, partnership, limited liability company or other organizational structure of
Holdings, the Borrower, its Subsidiaries and any other Person in which Holdings, the Borrower
or any of its Subsidiaries holds an equity interest; and (ii) accurately sets forth (A) the
correct legal name, the jurisdiction of incorporation, organization or formation and the
jurisdiction in which each of the Borrower and the direct and indirect Subsidiaries of the
Borrower is qualified to transact business as a foreign corporation, partnership, limited
liability company or other entity, (B) the authorized, issued and outstanding shares,
interests, units or the like of each class of Capital Stock of the Borrower and each of its
Subsidiaries and the owners of such shares, interests, units or the like, and (C) a summary of
the direct and indirect partnership, joint venture, or other equity interests, if any, of
Holdings, the Borrower and each Subsidiary of the Borrower in any Person that is not a
Subsidiary. None of the issued and outstanding Capital Stock of the Borrower or any of its
Subsidiaries is subject to any vesting, redemption, or repurchase agreement, and there are no
warrants or options outstanding with respect to such Capital Stock. The outstanding Capital
Stock of the Borrower and each of its Subsidiaries is duly authorized, validly issued, fully
paid and non-assessable and its not margin stock (as defined in Regulation U). The Borrower
has no direct Subsidiaries other than Alliance, SCP International, Inc., SCP Property Co., SCP
Barbados, Inc. and Superior Pool Products, LLC, all of the Capital Stock of which is owned by
the Borrower. Except as described in Schedule 5.8, Alliance has no assets or Indebtedness and
does not conduct any active business. Holdings has no Subsidiaries other than the Borrower and
its Subsidiaries and, upon its creation in accordance with Section 6.3(G), the Finance
Subsidiary, which Finance Subsidiary will merge with and into SCP Property Co."
6. Section 6.2(A) is deleted in its entirety and the following is substituted therefor:
"(A) Corporate Existence, Etc. The Borrower shall, and shall cause each of its Subsidiaries
(other than Alliance) to, at all times maintain its corporate, partnership, limited liability
company or other organizational existence and preserve and keep, or cause to be preserved and
kept, in full force and effect its rights and franchises material to its business.
7. Section 6.3(F)(iv) is amended by adding the phrase "and distributions" after the word "dividends" in the
third line thereof.
8. Section 6.3(N) is deleted in its entirety and the following is substituted therefor:
"(N) Corporate Documents. Neither the Borrower nor any of its Subsidiaries shall amend, modify
or otherwise change any of the terms or provisions in any of their respective organizational
documents, including without limitation, articles or certificates of incorporation, by-laws,
partnership agreement or limited liability agreement (other than the by-laws and, in the case
of by-laws, any of the material terms or provisions thereof) as in effect on the date hereof
or, if later, on the date on which any such document is initially adopted or executed as
permitted herein, in any manner adverse to the interests of the Lenders without the prior
written consent of the Required Lenders (which consent shall not be unreasonably withheld).
9. Section 6.3(Q) is amended by deleting the word "stock" in the fourth line therefor and substituting
"Capital Stock" therefor.
10. The parties acknowledge and agree that SCP Finance Co. constitutes the Finance Subsidiary. From and
after the effectiveness of the Merger, Holdings shall not thereafter create, capitalize (other
than Borrower) or acquire any Subsidiary.
3. Conditions of Effectiveness. This Amendment shall not become effective unless the Agent shall
have received the following on or before December 31, 2000:
11. the written consent of the holders of the Subordinated Intercompany Indebtedness, in form and substance
satisfactory to Agent; and
12. the documents and other items identified in the Closing Checklist, a copy of which is attached hereto as
Exhibit A, all in form and substance reasonably satisfactory to Agent, Lenders and Borrower.
4. Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as
follows:
13. This Amendment and the Credit Agreement as amended hereby, constitute legal, valid and binding
obligations of the Borrower and are enforceable against the Borrower in accordance with their
terms.
14. Upon the effectiveness of this Amendment, the Borrower hereby reaffirms all covenants, representations
and warranties made in the Credit Agreement and the other Loan Documents to the extent the same
are not amended hereby, and agrees that all such covenants, representations and warranties
shall be deemed to have been remade as of the effective date of this Amendment.
15. After giving effect to the consent in Section 1a hereof, no Default or Unmatured Default has occurred
and is continuing or would result from the execution of this amendment or the transactions
contemplated hereby.
16. The execution, delivery and performance of this Amendment (i) has been duly authorized by all necessary
corporate action and (ii) does not conflict with, result in a breach of, or constitute (with or
without notice or lapse of time or both) a default under any Contractual Obligation of
Holdings, Borrower or any of its Subsidiaries.
17. SCP Finance Co. owns no assets other than the Subordinated Intercompany Indebtedness and has no
liabilities or obligations. The principal place of business and chief executive office of SCP
Finance is ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
18. Consummation of the Conversion and Merger do not and will not (i) conflict with the certificate or
articles of incorporation or by-laws of the Borrower or any Subsidiary, (ii) constitute a
tortious interference with any Contractual Obligations of any Person or conflict with, result
in a breach of or constitute (with or without notice or lapse of time or both) a default under
any Requirement of Law (including, without limitation, any Environmental Property Transfer Act)
or Contractual Obligation of the Borrower or any such Subsidiary, or require termination of any
Contractual Obligation, (iii) result in or require the creation or imposition of any Lien
whatsoever upon any of the property or assets of the Borrower or any such Subsidiary, other
than Liens permitted by the Loan Documents, or (iv) require any approval of the Borrower's or
any Subsidiary's shareholders except such as have been obtained. Except for the filing with
the Secretary of State of Delaware of a Certificate of Conversion and Certificate of Formation
in connection with the Conversion and the filing with the Secretary of State of Delaware of
Articles of Merger in connection with the Merger, the Conversion and Merger do not and will not
require any registration with, consent or approval of, or notice to, or other action to, with
or by any Governmental Authority, including under any Environmental Property Transfer Act,
except filings, consents or notices which have been made, obtained or given.
2. Reference to the Effect on the Credit Agreement.
1. Upon the effectiveness of this Amendment, on and after the date hereof, each reference in the Credit
Agreement and other Loan Documents to (i) "this Credit Agreement," "hereunder," "hereof,"
"herein" or words of like import shall mean and be a reference to the Credit Agreement as
amended hereby and (ii) South Central Pool Supply, Inc., as borrower, debtor, assignor or
pledgor, as applicable, shall mean and be a reference to SCP Distributors LLC, a Delaware
limited liability company, it being the express intent and understanding of the parties that
SCP Distributors LLC constitute a continuation of the existence of South Central Pool Supply
Inc. and that the Obligations of South Central Pool Supply, Inc. constitute continuing
Obligations under the Credit Agreement and other Loan Documents.
2. Except as specifically amended above, the Credit Agreement and all other documents, instruments and
agreements executed and/or delivered in connection therewith, shall remain in full force and
effect, and are hereby ratified and confirmed.
3. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right,
power of remedy of the Agent or the Lenders, nor constitute a waiver of any provision of the
Credit Agreement or any other documents, instruments and agreements executed and/or delivered
in connection therewith.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAW
PROVISIONS) OF THE STATE OF ILLINOIS.
6. Headings. Section headings in this Amendment are included herein for convenience of reference
only and shall not constitute a part of this Amendment for any other purpose.
7. Counterparts. This Amendment may be executed by one or more of the parties to the Amendment on
any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. This Amendment may be executed by facsimile and a facsimile transmission of a signature
to the Agent or the Agent's counsel shall be effective as though an original signature had been so delivered.
8. No Strict Construction. The parties hereto have participated jointly in the negotiation and
drafting of this Amendment and the Credit Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Amendment and the Credit Agreement as hereby amended 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 Amendment or the Credit Agreement.
9. Reaffirmation. Each of the Loan Parties as debtor, grantor, pledgor, guarantor, assignor, or in
other any other similar capacity in which such Loan Party grants liens or security interests in its property or
otherwise acts as accommodation party or guarantor, as the case may be, hereby (i) ratifies and reaffirms all of
its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is
a party (after giving effect hereto) and (ii) to the extent such Loan Party granted liens on or security
interests in any of its property pursuant to any such Loan Document as security for or otherwise guaranteed the
Borrower's Obligations under or with respect to the Loan Documents, ratifies and reaffirms such guarantee and
grant of security interests and liens and confirms and agrees that such security interests and liens hereafter
secure all of the Obligations as amended hereby. Each of the Loan Parties hereby consents to this Amendment and
acknowledges that each of the Loan Documents remains in full force and effect and is hereby ratified and
reaffirmed. The execution of this Amendment shall not operate as a waiver of any right, power or remedy of the
Agent or Lenders, constitute a waiver of any provision of any of the Loan Documents or serve to effect a novation
of the Obligations.
[remainder of page intentionally left blank; signature pages follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above written.
LASALLE BANK NATIONAL ASSOCIATION, as a Lender and as Agent
By: /S/
Its: ___________________________________
HIBERNIA NATIONAL BANK, as a Lender
By: /S/
Its: ___________________________________
NATIONAL CITY BANK, as a Lender
By: /S/
Its: ___________________________________
BANK ONE, N.A., formerly known as THE FIRST NATIONAL BANK OF
CHICAGO, as a Lender
By: /S/
Its: ___________________________________
AGREED AND ACKNOWLEDGED THIS
28th Day of December, 2000
BORROWER:
SOUTH CENTRAL POOL SUPPLY, INC.
By: /S/
Its: ___________________________________
LOAN PARTIES:
SCP POOL CORPORATION
By: /S/
Its: ___________________________________
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ALLIANCE PACKAGING, INC.
By: /S/
Its: ___________________________________
SCP INTERNATIONAL, INC.
By: /S/
Its: ___________________________________
SUPERIOR POOL PRODUCTS, LLC
By: /S/
Its: ___________________________________
SCP PROPERTY CO.
By: /S/
Its: ___________________________________