Exhibit 10.11
SIXTH AMENDMENT TO LINE OF CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO LINE OF CREDIT AGREEMENT (this "Sixth Amendment")
is made and entered into as January 30, 2002, by and among HUGHES SUPPLY, INC.
("Borrower"), a Florida corporation, SUNTRUST BANK, a Georgia banking
corporation and successor by merger to SunTrust Bank, Central Florida, National
Association, BANK OF AMERICA, N.A., formerly known as NationsBank, N.A., a
national banking association, PNC BANK, N.A., a national banking association,
THE FIFTH THIRD BANK, a national banking association, and such other financial
institutions becoming a party hereto from time to time (individually, a "Lender"
and collectively, the "Lenders"), SUNTRUST BANK, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent") and BANK OF AMERICA,
N.A., as syndication agent for the Lenders (in such capacity, the "Syndication
Agent").
W I T N E S S E T H:
WHEREAS, ABN AMRO Bank, N.V., a banking corporation organized under the
laws of the Netherlands, Wachovia Bank, N.A., a national banking association,
SouthTrust Bank, an Alabama corporation, formerly known as SouthTrust Bank, N.A.
(individually, an "Exiting Lender" and collectively, the "Exiting Lenders"), the
Lenders, the Administrative Agent, the Syndication Agent, SouthTrust Bank as
co-agent (the "Co-Agent") and the Borrower are party to that certain Line of
Credit Agreement dated as of January 26, 1999, as amended by that certain First
Amendment to Line of Credit Agreement dated as of September 29, 1999, that
certain Second Amendment to Line of Credit Agreement dated as of May 29, 2000,
that certain Third Amendment to Line of Credit Agreement dated as of December
13, 2000, that certain Fourth Amendment to Line of Credit Agreement dated as of
December 20, 2000, and that certain Fifth Amendment to Line of Credit Agreement
dated as of May 31, 2001 (as so amended, and as further amended, restated,
supplemented, or otherwise modified, the "Line of Credit Agreement"), pursuant
to which the Lenders and the Exiting Lenders made available to Borrower credit
facilities subject to the terms and conditions set forth therein; and
WHEREAS, Borrower has requested an extension of the Line of Credit
Termination Date to July 31, 2002 together with certain other modifications to
the Line of Credit Agreement (the "Modifications"), the Exiting Lenders and the
Co-Agent have not agreed to the Modifications, but the Lenders, the
Administrative Agent and the Syndication Agent are willing to agree to the
Modifications on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, the parties hereto, intending to be legally bound, hereby amend the Line
of Credit Agreement and agree as follows:
A. AMENDMENTS
1. The preamble to the Line of Credit Agreement is hereby amended by
replacing the "Whereas" clause in its entirety with the following:
WHEREAS, Borrower has requested that the Lenders establish a
$36,250,000 line of credit facility in favor of Borrower, and subject to
the terms and conditions contained herein, the Lenders are willing to
establish such line of credit facility in favor of Borrower subject to the
terms and conditions set forth below;
2. The Line of Credit Agreement is hereby amended by replacing the
definitions of "Line of Credit Commitment" and "Line of Credit Termination Date"
in Section 1.01 in their entirety with the following:
"Line of Credit Commitment" or "Commitment" shall mean at
any time for any Lender, the amount of such commitment set forth opposite
such Lender's name on the signature pages to the Sixth Amendment or in any
assignment hereafter executed by any assignee of a Lender pursuant to
Section 10.06, as the same may be increased or decreased from time to time
as a result of any reduction thereof pursuant to Section 2.03, any
assignment thereof pursuant to Section 10.06, or any amendment thereof
pursuant to Section 10.02.
"Line of Credit Termination Date" shall mean the earlier of
(i) July 31, 2002, and (ii) the date on which the Line of Credit
Commitments are terminated in accordance with Article VIII.
3. The Line of Credit Agreement is hereby amended by adding the following
definition of "Sixth Amendment" to Section 1.01 in the proper alphabetical
order:
"Sixth Amendment" shall mean that certain Sixth Amendment to
Line of Credit Agreement, dated as of January 30, 2002, executed by the
Borrower, the Lenders, the Administrative Agent and the Syndication Agent.
4. Section 2.01 is of the Line of Credit Agreement is hereby amended by
replacing Section 2.01(c) in its entirety with the following:
(c) The proceeds of the Line of Credit Loans shall be used solely to
provide liquidity for the payment of commercial paper issued by Borrower
from time to time pursuant to the Borrower's unrated commercial paper
program with SunTrust Bank or any of its Affiliates. Line of Credit Loans
plus the amount of all commercial paper issued by Borrower may not at any
one time exceed Thirty-Six Million Two Hundred Fifty Thousand and 00/100
Dollars ($36,250,000).
5. The Line of Credit Agreement is hereby amended by deleting Section 9.12
in its entirety.
6. Upon this Sixth Amendment becoming effective, (i) the Exiting Lenders
shall no longer be deemed "Lenders" under the Line of Credit Agreement, (ii) the
Line of Credit Commitment and the Pro Rata Shares of the Lenders under the Line
of Credit Agreement shall be deemed adjusted to the amounts and percentages set
forth on the signature pages to this Sixth Amendment, (iii) there shall be no
Co-Agent under the Line of Credit Agreement, and (iv) any
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outstanding Loans shall be reallocated among the Lenders based their Pro Rata
Shares reflected on the signature pages hereto.
7. Prior to this Sixth Amendment becoming effective, any outstanding
Advances in excess of Thirty-Six Million Two Hundred Fifty Thousand and 00/100
Dollars ($36,250,000) shall be prepaid in accordance with the terms of the Line
of Credit Agreement.
B. CONDITIONS TO EFFECTIVENESS
The effectiveness of this Sixth Amendment is conditioned upon (a) all
accrued interest and fees due and payable to the Exiting Lenders being paid in
full by the Borrower to such Exiting Lenders, (b) the aggregate outstanding
Advances under the Line of Credit Agreement being less than or equal to
Thirty-Six Million Two Hundred Fifty Thousand and 00/100 Dollars ($36,250,000),
and (c) the Administrative Agent's receipt of the following, each dated as of
the date hereof, in form and substance reasonably satisfactory in all respects
to the Administrative Agent:
(a) The duly executed original counterparts of this Sixth Amendment;
(b) The duly executed Consent and Ratification of Guaranty (Line of Credit
Agreement), dated as of the date hereof, made by each of the Subsidiaries of
Borrower listed on the signature pages thereof;
(c) The duly executed Supplement to Subsidiary Guaranty Agreement, dated as
of the date hereof, made by each of the Subsidiaries of Borrower listed on the
signature pages thereof; and
(d) a certificate of a Secretary or Assistant Secretary of each "Additional
Guarantor" (as defined in the Supplement to Subsidiary Guaranty Agreement),
certifying such Additional Guarantor's (i) articles of organization or
incorporation, (ii) operating agreements or bylaws, and (iii) the unanimous
written consent of its members or directors, authorizing the execution, delivery
and performance of the Supplement to Subsidiary Guaranty Agreement.
C. MISCELLANEOUS
1. Borrower represents and warrants that after giving effect to this Sixth
Amendment and the transactions contemplated hereby, all of the representations
and warranties set forth in Article V of the Line of Credit Agreement are true
and correct in all material respects and no Default or Event of Default has
occurred and is continuing as of the date hereof.
2. Except as expressly provided herein, the Line of Credit Agreement shall
continue in full force and effect, and the unamended terms and conditions of the
Line of Credit Agreement are expressly incorporated herein and ratified and
confirmed in all respects. This Sixth Amendment is not intended to be or to
create, nor shall it be construed as, a novation or an accord and satisfaction.
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3. From and after the date hereof, references to the Line of Credit
Agreement shall be references to the Line of Credit Agreement as amended hereby.
4. This Sixth Amendment constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof. Neither this Sixth
Amendment nor any provision hereof may be changed, waived, discharged, modified
or terminated orally, but only by an instrument in writing signed by the parties
required to be a party thereto pursuant to Section 10.02 of the Line of Credit
Agreement.
5. THIS SIXTH AMENDMENT SHALL BE GOVERNED IN ALL RESPECTS BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA (WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF).
6. This Sixth Amendment may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which, taken together,
shall constitute one and the same document, and shall be effective as of the
date first above written.
7. Borrower shall reimburse the Administrative Agent for the reasonable
fees and expenses of counsel for the Administrative Agent in connection with
this Sixth Amendment.
8. Borrower hereby represents and warrants that each of the following
Subsidiaries of Borrower has been dissolved and is no longer in existence: (i)
ATLANTIC PUMP & EQUIPMENT COMPANY OF MIAMI, INC. , (ii) ATLANTIC PUMP &
EQUIPMENT COMPANY OF WEST PALM BEACH, INC., (iii) DOMINION PIPE FABRICATORS,
INCORPORATED, (iv) ELEC-TEL SUPPLY COMPANY, (v) PORT CITY ELECTRICAL SUPPLY,
INC., and (vi) R & G PLUMBING SUPPLY, INC.
[signatures on following page]
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IN WITNESS WHEREOF, the Borrower, the Administrative Agent, the
Syndication Agent, and the Lenders have caused this Sixth Amendment to be
executed as of the date first above written.
Address for Notices: BORROWER:
20 N. Orange Avenue HUGHES SUPPLY, INC.
Suite 200
Orlando, Florida 32801
Attention: J. Stephen Zepf By:_______________________________
Thomas I. Morgan
President
[SIGNATURE PAGE TO SIXTH AMENDMENT TO LINE OF CREDIT AGREEMENT]
Address for Notices: SUNTRUST BANK, formerly known as
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, individually and as
200 S. Orange Avenue Administrative Agent
MC 2064
Orlando, Florida 32801
By: ______________________________
Attn: Mr. William C. Barr Name:
Title:
Telecopy No. (407) 237-4076
Payment Office:
200 S. Orange Avenue
MC 2064
Orlando, Florida 32801
_________________________________________
Line of Credit Commitment: $13,750,000.00
Pro Rata Share of Line of Credit Commitment: 37.93%
[SIGNATURE PAGE TO SIXTH AMENDMENT TO LINE OF CREDIT AGREEMENT]
Address for Notices:
BANK OF AMERICA, N.A., formerly known as
NATIONSBANK, N.A., individually and as
100 SE 2nd Street, 14th Floor Syndication Agent
Miami, Florida 33131
Attn: Mr. Richard Starke
By:_______________________________
Telecopy No. (305) 533-2437 Name:
Title:
Payment Office:
Bank of America, N.A.
101 N. Tryon Street
Charlotte, North Carolina 28255
Attn: Ms. Deon Wright
__________________________________________
Line of Credit Commitment: $12,500,000.00
Pro Rata Share of Line of Credit Commitment: 34.48%
[SIGNATURE PAGE TO SIXTH AMENDMENT TO LINE OF CREDIT AGREEMENT]
Address for Notices: PNC BANK, N.A.
249 5th Avenue
Pittsburgh, Pennsylvania 15222
Attn: Mr. Doug King
By:_______________________________
Telecopy No. (412) 762-6484 Name:
Title:
Payment Office:
Two PNC Plaza/ Liberty Avenue.
Pittsburgh, Pennsylvania 15222
Attn: Ms. Anita Truchman
________________________________________
Line of Credit Commitment: $6,250,000.00
Pro Rata Share of Line of Credit Commitment: 17.24%
[SIGNATURE PAGE TO SIXTH AMENDMENT TO LINE OF CREDIT AGREEMENT]
Address for Notices: THE FIFTH THIRD BANK
MD 109054
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attn: Mr. Daniel Klus
By:__________________________________
Telecopy No. (513) 579-5226 Name:
Title:
Payment Office:
MD 109054
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attn: Ms. Amy Buquo
________________________________________
Line of Credit Commitment: $3,750,000.00
Pro Rata Share of Line of Credit Commitment: 10.34%
[SIGNATURE PAGE TO SIXTH AMENDMENT TO LINE OF CREDIT AGREEMENT]
CONSENT AND RATIFICATION OF GUARANTY
(Line of Credit Agreement)
THIS CONSENT AND RATIFICATION OF GUARANTY (the "Consent and
Ratification of Guaranty") is made and entered into as of January 30, 2002, by
each of the Subsidiaries of Hughes Supply, Inc., a Florida corporation (the
"Borrower"), listed on the signature pages hereof (the foregoing corporations,
individually a "Guarantor" and collectively the "Guarantors") in favor of
SUNTRUST BANK, successor by merger to SunTrust Bank, Central Florida, National
Association, individually and as administrative agent (the "Administrative
Agent"), BANK OF AMERICA, N.A., formerly known as NationsBank, N.A.,
individually and as syndication agent (the "Syndication Agent"), and each other
bank or other financial institution (collectively, the "Lenders") now or
hereafter becoming party to the Line of Credit Agreement (as hereinafter
defined; the Lenders, the Administrative Agent and the Syndication Agent are
hereinafter collectively referred to herein as the "Guaranteed Parties").
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders, the Administrative Agent and the
Syndication Agent have entered into that certain Line of Credit Agreement, dated
as of January 26, 1999, as amended by that certain First Amendment to Line of
Credit Agreement, dated as of September 29, 1999, that certain Second Amendment
to Line of Credit Agreement, dated as of May 29, 2000, that certain Third
Amendment to Line of Credit Agreement, dated as of December 13, 2000, that
certain Fourth Amendment to Line of Credit Agreement, dated as of December 20,
2000, that certain Fifth Amendment to Line of Credit Agreement, dated as of May
31, 2001, and that certain Sixth Amendment to Line of Credit Agreement, dated as
of the date hereof (as amended and as hereafter amended, restated, supplemented
or otherwise modified from time to time, the "Line of Credit Agreement";
capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in the Line of Credit Agreement), pursuant to which the Lenders
made available to the Borrower certain credit facilities subject to the terms
and conditions set forth therein;
WHEREAS, the Guarantors have made and entered into that certain
Subsidiary Guaranty Agreement, dated as of January 26, 1999, as supplemented by
that certain First Supplement to Subsidiary Guaranty Agreement, dated as of
August 31, 1999, by that Second Supplement to Subsidiary Guaranty Agreement,
dated as of April 4, 2000, and by that Supplement to Subsidiary Guaranty
Agreement, dated as of May 31, 2001, (as so supplemented and as hereafter
amended, restated, supplemented or otherwise modified from time to time, the
"Guaranty"), in favor of the Guaranteed Parties, pursuant to which the
Guarantors absolutely, unconditionally, jointly and severally, guaranteed to the
Guaranteed Parties, the full and prompt payment and performance of all
obligations, liabilities and covenants of the Borrower under the Line of Credit
Agreement, Line of Credit Notes and the other Credit Documents;
WHEREAS, as a condition precedent to extending the Line of Credit
Termination Date and otherwise modifying the Line of Credit Agreement pursuant
to that certain Sixth Amendment to Line of Credit Agreement, dated as of the
date hereof (the "Sixth Amendment"), the Guaranteed Parties have required the
Guarantors to execute this Consent and Ratification of Guaranty in connection
with the execution and delivery of the Sixth Amendment, and the Guarantors wish
to fulfill such condition precedent because the modifications contained in the
Sixth Amendment shall be beneficial to the Guarantors;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, the Guarantors hereby consent and agree as follows:
1. The Guarantors hereby consent to the execution and delivery by the
Borrower of the Sixth Amendment and jointly and severally ratify and confirm the
terms of the Guaranty with respect to the indebtedness now or hereafter
outstanding under the Line of Credit Agreement as amended to the date hereof and
all promissory notes issued thereunder. The Guarantors acknowledge that,
notwithstanding anything to the contrary contained herein or in any other
document evidencing any indebtedness of the Borrower to the Guaranteed Parties
or any other obligation of the Borrower, or any actions now or hereafter taken
by the Guaranteed Parties with respect to any obligation of the Borrower, the
Guaranty (i) is and shall continue to be a primary obligation of the Guarantors,
(ii) is and shall continue to be an absolute, unconditional, joint and several,
continuing and irrevocable guaranty of payment, and (iii) is and shall continue
to be in full force and effect in accordance with its terms, until all amounts
payable by the Borrower in favor of the Guaranteed Parties and their successors
and assigns under the Line of Credit Agreement shall have been paid in full.
Nothing contained herein to the contrary shall release, discharge, modify,
change or affect the original liability of the Guarantors under the Guaranty. As
of the date hereof, each Guarantor represents and warrants that it has no
defense, offset, or counterclaim against the Guaranteed Parties.
2. Each Guarantor represents and warrants that, as of the date hereof
and after giving effect to the transactions contemplated by the Sixth Amendment,
this Consent and Ratification of Guaranty and the other Credit Documents, (i)
the assets of such Guarantor, at fair valuation and based on their present fair
saleable value, will exceed such Guarantor's debts, including contingent
liabilities, (ii) the remaining capital of each Guarantor will not be
unreasonably small to conduct such Guarantor's business, and (iii) no Guarantor
will have incurred debts, or have intended to incur debts, beyond its ability to
pay such debts as they mature. For purposes of this paragraph, "debt" means any
liability on a claim, and "claim" means (a) the right to payment, whether or not
such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, or (b) the right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Guarantors have executed this Consent and
Ratification of Guaranty as of the date first above written.
GUARANTORS:
Address: CAROLINA PUMP & SUPPLY CORP.
20 North Orange Avenue CAYESTEEL, INC.
Suite 200 CF FLUID CONTROLS, INC.
Orlando, FL 32801 CHAD SUPPLY, INC.
Attn: J. Stephen Zepf COASTAL WHOLESALE, INC.
DOMINION PIPE & SUPPLY CO.
DOUGLAS LEONHARDT & ASSOCIATES, INC.
ELASCO AGENCY SALES, INC.
ELECTRIC LABORATORIES AND SALES
CORPORATION
FES MERGER CORP., INC.
GAYLE SUPPLY COMPANY, INC.
GILLELAND CONCRETE PRODUCTS, INC.
H VENTURE CORP.
HSI ACQUISITION CORPORATION
HSI FUSION SERVICES, INC.
HSI INDIANA, LLC
HSI NORTH CAROLINA, LLC
HUGHES WATER & SEWER COMPANY
HUGHES SUPPLY MANAGEMENT SERVICES, INC.
JUNO INDUSTRIES, INC.
KAMEN SUPPLY COMPANY, INC.
KINGSTON PIPE INDUSTRIES, INC.
MEREX CORPORATION
METALS INCORPORATED
METALS, INC. - GULF COAST DIVISION
MILLS & LUPTON SUPPLY COMPANY
MOORE ELECTRIC SUPPLY, INC.
MOUNTAIN COUNTRY SUPPLY, INC.
OLANDER & BROPHY, INCORPORATED
ONE-STOP SUPPLY, INC.
PAINE SUPPLY OF JACKSON, INC.
PALM POOL PRODUCTS, INC.
PANHANDLE PIPE AND SUPPLY CO., INC.
REACTION SUPPLY CORPORATION
SHRADER HOLDING COMPANY, INC.
STAINLESS TUBULAR PRODUCTS, INC.
USCO INCORPORATED
UNION MERGER CORPORATION
U.S. FUSION SERVICES, INC.
VIRGINIA WATER & WASTE SUPPLY COMPANY, INC.
WCC MERGER CORPORATION
WATERWORKS HOLDING COMPANY
WATERWORKS SALES COMPANY
WHOLESALE ELECTRIC SUPPLY CORPORATION
By: ______________________________________
J. Stephen Zepf
Treasurer
Address: HHH, LLC
1403 Foulk Road, Suite 102 HSI CORP.
Wilmington, DE 19803 L&T OF DELAWARE, INC.
Z&L ACQUISITION CORP.
By: ______________________________________
Gordon Stewart
President
Address: SOUTHWEST STAINLESS, L.P.
1403 Foulk Road, Suite 102
Wilmington, DE 19803 By: Z&L ACQUISITION CORP.,
its General Partner
By: ____________________________
Gordon Stewart
President
[SIGNATURE PAGE TO CONSENT AND RATIFICATION OF GUARANTY AGREEMENT]
SUPPLEMENT
TO
SUBSIDIARY GUARANTY AGREEMENT
THIS SUPPLEMENT TO SUBSIDIARY GUARANTY AGREEMENT (this "Supplement to
Guaranty Agreement"), dated as of January 30, 2002, made jointly and severally
by each of the corporations listed on the signature pages hereto (each, an
"Additional Guarantor"), in favor of SUNTRUST BANK, a Georgia banking
corporation and successor by merger to SunTrust Bank, Central Florida, National
Association, BANK OF AMERICA, N.A., formerly known as NationsBank, N.A., a
national banking association, PNC BANK, N.A., a national banking association,
THE FIFTH THIRD BANK, a national banking association, and such other financial
institutions becoming a party hereto from time to time (individually, a "Lender"
and collectively, the "Lenders"), SUNTRUST BANK, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"), and BANK OF AMERICA,
N.A., as syndication agent for the Lenders (in such capacity, the "Syndication
Agent"). The Lenders, the Administrative Agent and the Syndication Agent are
hereinafter collectively referred to herein as the "Guaranteed Parties".
W I T N E S S E T H:
WHEREAS, Hughes Supply, Inc., a Florida corporation ("Hughes"), the
Lenders, the Administrative Agent and the Syndication Agent are parties to a
Line of Credit Agreement, dated as of January 26, 1999, as amended by that
certain First Amendment to Line of Credit Agreement dated as of September 29,
1999, that certain Second Amendment to Line of Credit Agreement dated as of May
29, 2000, that certain Third Amendment to Line of Credit Agreement dated as of
December 13, 2000, that certain Fourth Amendment to Line of Credit Agreement
dated as of December 20, 2000, that certain Fifth Amendment to Line of Credit
Agreement, dated as of May 31, 2001, and that certain Sixth Amendment to Line of
Credit Agreement, dated as of the date hereof (as so amended and as further
amended, restated, supplemented or otherwise modified from time to time, the
"Line of Credit Agreement"), pursuant to which the Lenders, ABN AMRO Bank, N.V.,
a banking corporation organized under the laws of the Netherlands, Wachovia
Bank, N.A., a national banking association, and SouthTrust Bank, an Alabama
corporation, formerly known as SouthTrust Bank, N.A. made available to Borrower
credit facilities subject to the terms and conditions set forth therein;
WHEREAS, certain Subsidiaries (the "Subsidiary Guarantors") of Hughes
have executed and delivered a Subsidiary Guaranty Agreement, dated as of January
26, 1999 (as amended, restated, supplemented or otherwise modified from time to
time, the "Subsidiary Guaranty"), pursuant to which the Subsidiary Guarantors
have agreed to guarantee all of the
obligations of Hughes under the Line of Credit Agreement and the other Credit
Documents (as defined in the Line of Credit Agreement);
WHEREAS, Hughes, the Subsidiary Guarantors and the Additional
Guarantors share an identity of interests as members of a consolidated group of
companies engaged in substantially similar businesses; Hughes provides certain
centralized financial, accounting and management services to the Additional
Guarantors; the making of the loans will facilitate expansion and enhance the
overall financial strength and stability of the Hughes's corporate group,
including the Additional Guarantors; and by virtue of intercompany advances and
loans, the financial accommodations to Hughes under the Line of Credit Agreement
shall inure to the direct and material benefit of the Additional Guarantors; and
WHEREAS, it is a condition to the Lenders' continued obligation to
make loans to Hughes under the Line of Credit Agreement that each Additional
Guarantor execute and deliver to the Administrative Agent on behalf of the
Lenders this Supplement to Guaranty Agreement, and each Additional Guarantor
desires to execute and deliver this Supplement to Guaranty Agreement to satisfy
such condition subsequent;
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders to make the loans to Hughes under the Line of Credit
Agreement, each Additional Guarantor hereby agrees as follows:
1. Defined Terms. Capitalized terms not otherwise defined herein shall
have the meanings specified for such terms in the Subsidiary Guaranty.
2. Additional Guarantor. Each Additional Guarantor agrees that it
shall be and become a Guarantor for all purposes of the Subsidiary Guaranty and
shall be fully liable thereunder to the Administrative Agent and other
Guaranteed Parties to the same extent and with the same effect as though such
Additional Guarantor had been one of the Guarantors originally executing and
delivering the Subsidiary Guaranty. Without limiting the foregoing, each
Additional Guarantor hereby jointly and severally (with respect to the
guaranties made by the Subsidiary Guarantors under the Subsidiary Guaranty),
irrevocably and unconditionally, guarantees the punctual payment when due,
whether at stated maturity by acceleration or otherwise, of all Line of Credit
Loans and all other Obligations (as defined in the Line of Credit Agreement),
including all renewals, extensions, modifications and refinancings thereof, now
or hereafter existing, whether for principal, interest, fees, expenses or
otherwise, and any and all expenses (including reasonable attorneys' fees
actually incurred and reasonable out-of-pocket expenses) incurred by the
Guaranteed Parties in enforcing any rights under the Subsidiary Guaranty (as
supplemented hereby), subject, however, to the limitations expressly provided in
the Subsidiary Guaranty in Section 16 thereof. All references in the Subsidiary
Guaranty to "Guarantors" or any "Guarantor" shall be deemed to include each
Additional Guarantor as if such Additional Guarantor was one of the original
Guarantors executing the Subsidiary Guaranty.
3. Enforceability. This Supplement has been duly authorized, executed
and delivered by each Additional Guarantor and constitutes a legal, valid and
binding obligation of such Additional Guarantor, enforceable against it in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law
or in equity).
4. Counterparts. This Supplement and any amendments, waivers, consents
or supplements may be executed in any number of counterparts, each of which when
so executed and delivered shall be deemed an original, but all such counterparts
shall constitute but one and the same instrument.
5. Effective Upon Delivery. This Supplement shall become effective
upon execution by each Additional Guarantor and delivery of this Supplement, as
executed, to the Administrative Agent.
6. Governing Law; Appointment of Agent for Service of Process;
Submission to Jurisdiction; Waiver of Jury Trial.
a. THIS SUPPLEMENT TO GUARANTY AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAWS OF THE STATE OF GEORGIA (WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAW PRINCIPLES THEREOF).
b. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS SUPPLEMENT TO
GUARANTY AGREEMENT RELATED HERETO MAY BE BROUGHT IN THE SUPERIOR COURT OF FULTON
COUNTY OF THE STATE OF GEORGIA OR OF THE UNITED STATES OF AMERICA FOR THE
NORTHERN DISTRICT OF GEORGIA, AND, BY EXECUTION AND DELIVERY OF THIS SUPPLEMENT
TO GUARANTY AGREEMENT, EACH ADDITIONAL GUARANTOR HEREBY CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THE AFORESAID COURTS SOLELY
FOR THE PURPOSE OF ADJUDICATING ITS RIGHTS OR THE RIGHTS OF THE ADMINISTRATIVE
AGENT OR OTHER GUARANTEED PARTIES WITH RESPECT TO THIS SUPPLEMENT TO GUARANTY
AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH ADDITIONAL GUARANTOR HEREBY
IRREVOCABLY DESIGNATES CORPORATION SERVICE COMPANY AS THE DESIGNEE, APPOINTEE
AND AGENT OF SUCH ADDITIONAL GUARANTOR TO RECEIVE, FOR AND ON BEHALF OF SUCH
ADDITIONAL GUARANTOR, SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS SUPPLEMENT TO
GUARANTY AGREEMENT OR ANY DOCUMENT RELATED HERETO AND SUCH SERVICE SHALL BE
DEEMED COMPLETED THIRTY (30) DAYS AFTER MAILING THEREOF TO SAID AGENT. IT IS
UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY
FORWARDED BY SUCH LOCAL AGENT AND BY THE SERVER OF PROCESS BY MAIL TO SUCH
ADDITIONAL GUARANTOR AT ITS ADDRESS SET FORTH HEREIN, BUT THE FAILURE OF ANY
ADDITIONAL GUARANTOR TO RECEIVE SUCH COPY SHALL NOT, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS. EACH ADDITIONAL
GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS
SUPPLEMENT TO GUARANTY AGREEMENT OR ANY DOCUMENT RELATED THERETO. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST ANY ADDITIONAL GUARANTOR IN ANY OTHER JURISDICTION.
c. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH ADDITIONAL
GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS SUPPLEMENT
TO GUARANTY AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR ANY MATTER ARISING IN
CONNECTION HEREUNDER OR THEREUNDER.
7. Severability. In case any provision in or obligation under this
Supplement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
[Signatures appear on the following page.]
IN WITNESS WHEREOF, each Additional Guarantor has caused this
Supplement to Guaranty Agreement to be duly executed and delivered to the
Administrative Agent by its duly authorized officers as of the date first above
written.
Address for Notices: ADDITIONAL GUARANTORS:
4925 Kearney Street WATERWORKS HOLDING COMPANY, a Colorado
Denver, Colorado 80216 corporation
Attention: J. Stephen Zepf
By:__________________________________________
Name:
Title:
4925 Kearney Street WATERWORKS SALES COMPANY, a Colorado
Denver, Colorado 80216 corporation
Attention: J. Stephen Zepf
By:__________________________________________
Name:
Title:
1403 Foulk Road, Suite 102 HHH, LLC, a Delaware limited liability
Wilmington, DE 19803 company
Attention: Gordon Stewart
By:__________________________________________
Name:
Title:
1403 Foulk Road, Suite 102 HSI NORTH CAROLINA, LLC, a North Carolina
Wilmington, DE 19803 limited liability company
Attention: Gordon Stewart
By:__________________________________________
Name:
Title:
1403 Foulk Road, Suite 102 HSI INDIANA, LLC, an Indiana limited
Wilmington, DE 19803 liability company
Attention: Gordon Stewart
By:__________________________________________
Name:
Title:
[SIGNATURE PAGE TO SUPPLEMENT TO GUARANTY AGREEMENT]