EXHIBIT 10.1
AMENDMENT NO. 4 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 4 TO CREDIT AGREEMENT (this "Amendment"), dated as
of June 30, 2002, by and among:
(i) XXXXXXX & SYLVAN POOLS CORPORATION, an Ohio corporation
(herein, together with its successors and assigns, the "BORROWER");
(ii) the financial institutions listed on the signature pages
hereof (collectively, the "LENDERS"); and
(iii) NATIONAL CITY BANK, a national banking association, as a
Lender, the Letter of Credit Issuer, the Collateral Agent and the
Administrative Agent.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, the Letter of Credit Issuer, the
Collateral Agent and the Administrative Agent entered into the Credit Agreement,
dated as of July 8, 1999, as amended (the "CREDIT AGREEMENT"; the terms defined
therein used herein as so defined).
(2) The parties hereto desire to modify certain provisions of the
Credit Agreement, all as more fully set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. AMENDMENTS.
1.1. AMENDMENT TO FIXED CHARGE COVERAGE RATIO COVENANT. Section 9.10 of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
9.10. FIXED CHARGE COVERAGE RATIO. The Borrower will not permit its
Fixed Charge Coverage Ratio for any Testing Period to be less than the ratio
specified below:
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TESTING PERIOD RATIO
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Testing Period ended on or nearest to 1.30 to 1.00
June 30, 2000 and any Testing Period
thereafter ending prior to the
Testing Period specified below
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Testing Periods ended on or nearest 1.50 to 1.00
to December 31, 2001 and March 31,
2002
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Testing Period ended June 30, 2002 1.20 to 1.00
and any Testing Period thereafter
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SECTION 2. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Lenders and the Administrative Agent as follows:
2.1 AUTHORIZATION, VALIDITY AND BINDING EFFECT. This Amendment has been
duly authorized by all necessary corporate action on the part of the Borrower,
has been duly executed and delivered by a duly authorized officer or officers of
the Borrower, and constitutes the valid and binding agreement of the Borrower,
enforceable against the Borrower in accordance with its terms.
2.2. REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. The
representations and warranties of the Borrower contained in the Credit
Agreement, as amended hereby, are true and correct on and as of the date hereof
as though made on and as of the date hereof, except to the extent that such
representations and warranties expressly relate
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to a specified date, in which case such representations and warranties are
hereby reaffirmed as true and correct when made.
2.3. NO EVENT OF DEFAULT. No condition or event has occurred or exists
that constitutes or that, after notice or lapse of time or both, would
constitute a Default or an Event of Default.
2.4. NO CLAIMS. The Borrower is not aware of any claim or offset
against, or defense or counterclaim to, any of its obligations or liabilities
under the Credit Agreement or any other Credit Document.
SECTION 3. RATIFICATIONS. Except as expressly modified and superseded
by this Amendment, the terms and provisions of the Credit Agreement are ratified
and confirmed and shall continue in full force and effect.
SECTION 4. BINDING EFFECT. This Amendment shall become effective as of
the date first written above, subject to the satisfaction of the following
conditions:
(a) this Amendment shall have been executed by the Borrower, the
Required Lenders and the Administrative Agent, and counterparts hereof as so
executed shall have been delivered to the Administrative Agent;
(b) the Borrower shall have paid all legal fees and expenses of the
Administrative Agent in connection with this Amendment and the documents
executed in connection herewith; and
(c) the Borrower shall have provided such other items and shall have
satisfied such other conditions as may be reasonably required by the
Administrative Agent and the Lenders.
SECTION 5. MISCELLANEOUS.
5.1. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the Borrower, each Lender and the Administrative Agent
and their respective permitted successors and assigns.
5.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in this Amendment shall survive the execution and delivery
of this Amendment, and no investigation by the Administrative Agent or any
Lender or any subsequent Loan or issuance of a Letter of Credit shall affect the
representations and warranties or the right of the Administrative Agent or any
Lender to rely upon them.
5.3. REFERENCE TO CREDIT AGREEMENT. The Credit Agreement and any and
all other agreements, instruments or documentation now or hereafter executed and
delivered pursuant to the terms of the Credit Agreement as amended hereby, are
hereby amended so that any reference therein to the Credit Agreement shall mean
a reference to the Credit Agreement as amended hereby.
5.4. SEVERABILITY. Any term or provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the term or provision so held to be invalid or unenforceable.
5.5. APPLICABLE LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Ohio, without regard to principles
of conflicts of laws.
5.6. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.7. ENTIRE AGREEMENT. This Amendment is specifically limited to the
matters expressly set forth herein. This Amendment and all other instruments,
agreements and documentation executed and delivered in connection with this
Amendment embody the final, entire agreement among the parties hereto with
respect to the subject matter
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hereof and supersede any and all prior commitments, agreements, representations
and understandings, whether written or oral, relating to the matters covered by
this Amendment, and may not be contradicted or varied by evidence of prior,
contemporaneous or subsequent oral agreements or discussions of the parties
hereto. There are no oral agreements among the parties hereto relating to the
subject matter hereof or any other subject matter relating to the Credit
Agreement.
5.8. WAIVER OF CLAIMS. The Borrower, by signing below, hereby waives
and releases the Administrative Agent, the Collateral Agent, the Letter of
Credit Issuer and each of the Lenders and their respective directors, officers,
employees, attorneys, affiliates and subsidiaries from any and all claims,
offsets, defenses and counterclaims of which Borrower is aware, such waiver and
release being with full knowledge and understanding of the circumstances and
effect thereof and after having consulted legal counsel with respect thereto.
5.9. COUNTERPARTS. This Amendment may be executed by the parties hereto
separately in one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall constitute
one and the same agreement. Transmission by a party to another party (or its
counsel) via facsimile of a copy of this Amendment (or a signature page of this
Amendment) shall be as fully effective as delivery by such transmitting party to
the other parties hereto of a counterpart of this Amendment that had been
manually signed by such transmitting party.
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