<PAGE> 1
EXHIBIT 10.1
AUGUST 2000 AMENDMENT TO SECOND AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
AND MODIFICATION TO OTHER AGREEMENTS
THIS AUGUST 2000 AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT AND MODIFICATION TO OTHER AGREEMENTS (this "Amendment") is made and
entered into this 10th day of August, 2000, to be effective as of the respective
date herein indicated, by and among SEPCO INDUSTRIES, INC., a Texas corporation
("Sepco"), BAYOU PUMPS, INC., a Texas corporation ("Bayou") and AMERICAN MRO,
INC., a Nevada corporation ("American") (Sepco, Bayou and American being
hereinafter individually and collectively referred to as "Borrower", as governed
by the provisions of Section 1.4, Section 1.5, and Section 1.6 of the Loan
Agreement, as hereinafter defined), and FLEET CAPITAL CORPORATION, a Rhode
Island corporation ("Lender"), successor-in-interest by merger to Fleet Capital
Corporation, a Connecticut corporation (Fleet Capital Corporation, a Connecticut
corporation, having been, formerly known as Shawmut Capital Corporation, and
having been the successor-in-interest by assignment to Barclays Business Credit,
Inc., a Connecticut corporation).
RECITALS
A. Sepco and Barclays Business Credit, Inc., have entered into that certain
Second Amended and Restated Loan and Security Agreement, dated as of April 1,
1994, as amended by that certain First Amendment to Second Amended and Restated
Loan and Security Agreement and Secured Promissory Note, dated May, 1995,
executed by Sepco and Fleet Capital Corporation, a Connecticut corporation (at
that time known as Shawmut Capital Corporation), and as amended by that certain
Second Amendment to Second Amended and Restated Loan and Security Agreement,
entered into on April 3, 1996, executed by Sepco and Fleet Capital Corporation,
a Connecticut corporation, and as amended by that certain Third Amendment to
Second Amended and Restated Loan and Security Agreement, dated September 9,
1996, executed by Sepco, Bayou and Lender, and as amended by that certain Fourth
Amendment to Second Amended and Restated Loan and Security Agreement, dated
October 24, 1996, executed by Lender and Borrower, and as amended by that
certain letter agreement dated November 4, 1996, entered into by Lender and
Borrower, and as amended by that certain Fifth Amendment to Second Amended and
Restated Loan and Security Agreement, dated June 2, 1997, executed by Lender and
Borrower, and as amended by that certain Sixth Amendment to Second Amended and
Restated Loan and Security Agreement and Amendment to Other Agreements executed
by Borrower and Lender, and as amended by that certain Seventh Amendment to
Second Amended and Restated Loan and Security Agreement, entered into on June
30, 1998, executed by Borrower and Lender, and as amended by that certain Eighth
Amendment to Second Amended and Restated Loan and Security Agreement and
Modification to Other Agreements, entered into on October 20, 1998, executed by
Borrower and Lender, and as amended by that certain letter agreement dated March
30, 1999, executed by Borrower and Lender, and as amended by that certain letter
agreement, dated May 13, 1999, executed by Borrower and Lender, and as amended
by that certain August 1999 Amendment to Second Amended and Restated Loan and
Security Agreement and Modification to Other Agreements, entered into on August
13, 1999, executed by Borrower and Lender (as amended, the "Loan Agreement").
B. Lender, effective May 1, 1996, as successor-in-interest by merger to
Fleet Capital Corporation, a Connecticut corporation, succeeded to, and today
remains the present holder of, all
AUGUST 2000 AMENDMENT TO SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT - PAGE 1
<PAGE> 2
right, title and interest of Fleet Capital Corporation, a Connecticut
corporation, in the Loan Agreement and each of the Other Agreements.
C. Borrower and Lender desire to further amend the Loan Agreement and the
Other Agreements as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
AGREEMENT
ARTICLE I
DEFINITIONS
1.01 Capitalized terms used in this Amendment are defined in the Loan
Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
AMENDMENTS AND MODIFICATION
Effective as of the respective date herein indicated, the Loan Agreement
and the Other Agreements are hereby respectively amended as follows:
2.01 AMENDMENT TO SECTION 1.1 OF THE LOAN AGREEMENT; AMENDMENT OF THE
DEFINITION OF "BORROWING BASE". Effective as of the date of execution of this
Amendment, the definition of "Borrowing Base" contained in Section 1.1 of the
Loan Agreement is hereby amended by deleting therefrom the reference to the
phrase "Thirty-Six Million Eight Hundred Thousand Dollars ($36,800,000), and
substituting therefor the phrase "Thirty Million Eight Hundred Thousand Dollars
($30,800.000)."
2.02 AMENDMENT TO SECTION 1.1 OF THE LOAN AGREEMENT; AMENDMENT AND
RESTATEMENT OF THE DEFINITION OF "COMMITMENT". Effective as of the date of
execution of this Amendment, the definition of "Commitment" contained in Section
1.1 of the Loan Agreement is hereby amended and restated to read in its entirety
as follows:
"Commitment - shall mean Thirty Million Eight Hundred Thousand Dollars
($30,800,000)."
2.03 AMENDMENT TO SECTION 1.1 OF THE LOAN AGREEMENT; AMENDMENT AND
RESTATEMENT OF THE DEFINITION OF "DOMESTIC MARGIN". Effective as of the date of
execution of this Amendment, the definition of "Domestic Margin" contained in
Section 1.1 of the Loan Agreement is amended and restated to read in its
entirety as follows:
"Domestic Margin - (i) as to the Revolving Credit Loans shall mean
0.50% per annum, and (ii) as to the Term Loan and the Acquisition Term
Loans shall mean 1.50% per annum."
AUGUST 2000 AMENDMENT TO SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT - PAGE 2
<PAGE> 3
2.04 AMENDMENT TO SECTION 2.2(A) OF THE LOAN AGREEMENT. Effective as of the
date of execution of this Amendment, Section 2.2(A) of the Loan Agreement is
amended by deleting therefrom the reference to the date "March 31, 2001" and
substituting therefor the date "June 30, 2001."
2.05 ADDITION OF A NEW SECTION 2.5. Effective as of the date of execution
of this Amendment, a new Section 2.5 Audit and Appraisal Fees; Annual Servicing
Fee is added to the Loan Agreement to read as follows:
"2.5 Audit and Appraisal Fees; Annual Servicing Fee. Borrower shall
reimburse Lender for all reasonable out-of-pocket costs and expenses
incurred by Lender in connection with audits and appraisals of Borrower's
books and records and such other matters as Lender shall deem appropriate.
In connection with any audit by Lender of Borrower's books and records
an/or of the books and records of DXP Acquisition, Inc. d/b/a Strategic
Acquisition, Inc. and/or of Pelican State Supply Company, Inc., Borrower
shall also pay Lender an aggregate per diem fee of Six Hundred Fifty
Dollars ($650). All such out-of-pocket costs, fees and expenses shall be
payable on demand."
2.06 AMENDMENT TO SECTION 3.3(A) OF THE LOAN AGREEMENT. Effective as of the
date of execution of this Amendment, Section 3.3(A) of the Loan Agreement is
hereby amended by deleting therefrom the reference to the date "April 1, 2001"
and substituting therefor the date "July 1, 2001."
2.07 AMENDMENT AND RESTATEMENT OF SECTION 3.3(C) OF THE LOAN AGREEMENT.
Effective as of the date of execution of this Amendment, Section 3.3(C) of the
Loan Agreement is amended and restated to read in its entirety as follows:
"At the effective date of any termination of this Agreement, Borrower
shall pay to Lender (in addition to the then outstanding principal, accrued
interest and other charges owing under this Agreement and any of the Other
Agreements), as liquidated damages for the loss of the bargain and not as a
penalty, an amount equal to 0.5% of the highest of the Average Monthly Loan
Balances outstanding pursuant to Section 2.1 during the twelve month period
ending on the date of termination. If termination occurs on the last day of
the Original Term or the last day of any Renewal Term, no termination
charge shall be payable."
2.08 EXTENSION OF MATURITY OF TERM NOTE. Effective as of the date of
execution of this Amendment, the maturity of the Term Note is hereby renewed and
extended until July 1, 2001.
2.09 AMENDMENT TO PAYMENT TERMS IN THE TERM NOTE. Borrower and Lender
hereby agree that effective as of June 1, 2000, the last paragraph on page two
of the Term Note is amended and restated to read in its entirety as follows:
"The principal amount of and accrued interest on this Note shall be
due and payable on the dates and in the manner hereinafter set forth:
(a) interest shall be due and payable monthly, in arrears, on the
first day of each month, continuing until such time as the full
principal
AUGUST 2000 AMENDMENT TO SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT - PAGE 3
<PAGE> 4
balance, together with all other amounts owing hereunder, shall have
been paid in full;
(b) the principal shall be due and payable in monthly
installments of ONE HUNDRED TWENTY THOUSAND FIVE HUNDRED TWENTY AND
NO/100 DOLLARS ($120,520.00) and each shall be due and payable on June
1, 2000, and on the first day of each month thereafter to and
including the first day of June 1, 2001; and
(c) the entire unpaid principal balance hereof, together with any
and all other amounts due hereunder, shall be due and payable on July
1, 2001."
2.10 EXTENSION OF MATURITY OF ACQUISITION TERM LOANS NOTE. Effective as of
the date of execution of this Amendment, the maturity of the Acquisition Term
Loans Note is hereby renewed and extended until July 1, 2001.
2.11 AMENDMENT TO PAYMENT TERMS IN THE ACQUISITION TERM LOANS NOTE.
Borrower and Lender hereby agree that effective as of June 1, 2000, the last
paragraph on page two of the Acquisition Term Loans Note is amended and restated
to read in its entirety as follows:
"The principal amount and accrued interest on this Note shall be due and
payable on the dates and in the manner hereinafter set forth:
(a) interest shall be due and payable monthly, in arrears, on the
first day of each month, continuing until such time as the full
principal balance, together with all other amounts owing
hereunder, shall have been paid in full;
(b) the principal shall be due and payable in monthly installments of
TEN THOUSAND FOUR HUNDRED EIGHTY AND NO/100 DOLLARS ($10,480.00)
and each shall be due and payable on June 1, 2000, and on the
first day of each month thereafter to and including the first day
of June, 2001; and
(c) the entire unpaid principal balance hereof, together with any and
all amounts due hereunder, shall be due and payable on July 1,
2001."
ARTICLE III
LIMITED WAIVER
3.01 Borrower has informed Lender that Borrower has violated the financial
covenants contained in Sections 9.3(A), (B), (C) and (D) of the Loan Agreement
for the relevant fiscal period ending June 30, 2000, and has requested that
Lender waive such violations. Subject to the satisfaction of the conditions
precedent set forth in Section 4.01 of this Amendment and to the other terms,
conditions and provisions of this Amendment, the Lender hereby waives each of
the above-described Sections of the Loan Agreement; provided, however, that the
waiver described in this Section 3.01 of this Amendment is strictly limited to
the Sections of the Loan Agreement described above and to the specific
occurrences described above. Except as otherwise specifically provided for
AUGUST 2000 AMENDMENT TO SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT - PAGE 4
<PAGE> 5
in this Amendment, nothing contained herein shall be construed as a waiver by
Lender of any covenant or provision of the Loan Agreement, the Other Agreements,
this Amendment or of any other contract or instrument between Borrower and
Lender, and the failure of Lender at any time or times hereafter to require
strict performance by Borrower of any provision thereof shall not waive, affect
or diminish any right of Lender to thereafter demand strict compliance
therewith. Lender hereby reserves all rights granted under the Loan Agreement,
the Other Agreement, this Amendment and any other contract or instrument between
Borrower and Lender.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions precedent in a manner
satisfactory to Lender, unless specifically waived in writing by Lender:
(a) Lender shall have received each of the following, each in form and
substance satisfactory to Lender, in its sole discretion, and, where
applicable, each duly executed by each party thereto, other than Lender:
(i) This Amendment, duly executed by Borrower, together with the
relevant Consent, Ratification, and Amendment, respectively duly
executed by David R. Little, individually, Gary A. Allcorn, Trustee
for Kacey Joyce Little, Nicholas David Little and Andrea Rae Little
1988 Trusts, DXP Enterprises, Inc. ("Parent"), DXP Acquisition, Inc.,
d/b/a Strategic Acquisition, Inc. and Pelican State Supply Company,
Inc.; and
(ii) All other documents Lender may request with respect to any
matter relevant to this Amendment or the transactions contemplated
hereby;
(b) The representations and warranties contained herein and in the
Loan Agreement and the Other Agreements, as each is amended hereby, shall
be true and correct as of the date hereof, as if made on the date hereof;
(c) No Default or Event of Default shall have occurred and be
continuing, unless such Default or Event of Default has been otherwise
specifically waived in writing by Lender; and
(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents, instruments
and other legal matters incident thereto shall be satisfactory to Lender
and its legal counsel.
ARTICLE V
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES; FEE
5.01 RATIFICATIONS. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Loan Agreement and the Other Agreements, and, except as expressly modified
and superseded by this Amendment, the terms and provisions of the Loan Agreement
and the Other Agreements are ratified and confirmed and shall continue in full
force and effect. Each Borrower and Lender agree that the Loan Agreement and the
AUGUST 2000 AMENDMENT TO SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT - PAGE 5
<PAGE> 6
Other Agreements, as amended hereby, shall continue to be legal, valid, binding
and enforceable in accordance with their respective terms.
5.02 REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents and
warrants to Lender that (a) the execution, delivery and performance of this
Amendment and any and all Other Agreements executed and/or delivered in
connection herewith have been authorized by all requisite corporate action on
the part of such Borrower and will not violate the Articles of Incorporation or
Bylaws of such Borrower; (b) attached hereto as Annex A is a true, correct and
complete copy of presently effective resolutions of each Borrower's Board of
Directors authorizing the execution, delivery and performance of this Amendment
and any and all Other Agreements executed and/or delivered in connection
herewith, certified by the Assistant Secretary of Borrower; (c) the
representations and warranties contained in the Loan Agreement, as amended
hereby, and any Other Agreement are true and correct on and as of the date
hereof and on and as of the date of execution hereof as though made on and as of
each such date; (d) no Default or Event of Default under the Loan Agreement, as
amended hereby, has occurred and is continuing, unless such Default or Event of
Default has been specifically waived in writing by Lender; (e) each Borrower is
in full compliance with all covenants and agreements contained in the Loan
Agreement and the Other Agreements, as amended hereby; (f) Sepco has not amended
its Articles of Incorporation or its Bylaws since the date of the Loan
Agreement, (g) Bayou has not amended its Articles of Incorporation or its Bylaws
since the date of incorporation of Bayou and (h) American has not amended its
Articles of Incorporation or its Bylaws since the date of incorporation of
American.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in the Loan Agreement or any Other Agreement, including, without
limitation, any document furnished in connection with this Amendment, shall
survive the execution and delivery of this Amendment and the Other Agreements,
and no investigation by Lender or any closing shall affect the representations
and warranties or the right of Lender to rely upon them.
6.02 REFERENCE TO LOAN AGREEMENT. Each of the Loan Agreement and the Other
Agreements, and any and all other agreements, documents or instruments now or
hereafter executed and delivered pursuant to the terms hereof or pursuant to the
terms of the Loan Agreement, as amended hereby, are hereby amended so that any
reference in the Loan Agreement and such Other Agreements to the Loan Agreement
shall mean a reference to the Loan Agreement as amended hereby.
6.03 EXPENSES OF LENDER. As provided in the Loan Agreement, each Borrower
agrees to pay on demand all costs and expenses incurred by Lender in connection
with the preparation, negotiation, and execution of this Amendment and the Other
Agreements executed pursuant hereto and any and all amendments, modifications,
and supplements thereto, including, without limitation, the costs and fees of
Lender's legal counsel, and all costs and expenses incurred by Lender in
connection with the enforcement or preservation of any rights under the Loan
Agreement, as amended hereby, or any Other Agreements, including, without,
limitation, the costs and fees of Lender's legal counsel.
6.04 SEVERABILITY. Any 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
AUGUST 2000 AMENDMENT TO SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT - PAGE 6
<PAGE> 7
Amendment and the effect thereof shall be confined to the provision so held to
be invalid or unenforceable.
6.05 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and shall inure
to the benefit of Lender and each Borrower and their respective successors and
assigns, except that no Borrower may assign or transfer any of its rights or
obligations hereunder without the prior written consent of Lender.
6.06 COUNTERPARTS. This Amendment may be executed 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
instrument.
6.07 EFFECT OF WAIVER. No consent or waiver, express or implied, by Lender
to or for any breach of or deviation from any covenant or condition by any
Borrower shall be deemed a consent to or waiver of any other breach of the same
or any other covenant, condition or duty.
6.08 HEADINGS. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
6.09 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER AGREEMENTS EXECUTED
PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
6.10 FINAL AGREEMENT. THE LOAN AGREEMENT AND THE OTHER AGREEMENTS, EACH AS
AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT TO
THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE LOAN
AGREEMENT AND THE OTHER AGREEMENTS, AS AMENDED HEREBY, MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO
MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS
AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY EACH BORROWER
AND LENDER.
6.11 RELEASE. EACH BORROWER HEREBY ACKNOWLEDGES THAT IT HAS NO DEFENSE,
COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE
WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS
LIABILITY TO REPAY THE "OBLIGATIONS" OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF
ANY KIND OR NATURE FROM LENDER. EACH BORROWER HEREBY VOLUNTARILY AND KNOWINGLY
RELEASES AND FOREVER DISCHARGES LENDER, ITS PREDECESSORS, AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF
ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN,
ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR
CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE
THE DATE THIS AMENDMENT IS EXECUTED, WHICH ANY BORROWER MAY NOW OR HEREAFTER
HAVE AGAINST LENDER, ITS PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNS, IF
AUGUST 2000 AMENDMENT TO SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT - PAGE 7
<PAGE> 8
ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT,
VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY "LOANS",
INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING,
COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE
APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE LOAN AGREEMENT OR
OTHER AGREEMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.
AUGUST 2000 AMENDMENT TO SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT - PAGE 8
<PAGE> 9
IN WITNESS WHEREOF, this Amendment has been executed and is effective as of
the date first above-written.
"BORROWER"
SEPCO INDUSTRIES, INC.
By:
-------------------------------------
Name
-------------------------------------
Title:
-------------------------------------
BAYOU PUMPS, INC.
By:
-------------------------------------
Name
-------------------------------------
Title:
-------------------------------------
AMERICAN MRO, INC.
By:
-------------------------------------
Name
-------------------------------------
Title:
-------------------------------------
"LENDER"
FLEET CAPITAL CORPORATION
By:
-------------------------------------
Name
-------------------------------------
Title:
-------------------------------------
ANNEXES:
A-1 - Certified Resolutions of Sepco Industries, Inc.
A-2 - Certified Resolutions of Bayou Pumps, Inc.
A-3 - Certified Resolutions of American MRO, Inc.
AUGUST 2000 AMENDMENT TO SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
<PAGE> 10
ANNEX A-1
CERTIFIED RESOLUTIONS OF
SEPCO INDUSTRIES, INC.'S BOARD OF DIRECTORS
RESOLVED: That any officer of Sepco Industries, Inc., a Texas corporation
(the "Corporation"), acting alone, by his signature be, and the same hereby is,
authorized and directed, in the name of and on behalf of the Corporation (a) to
amend the Corporation's existing Second Amended and Restated Loan and Security
Agreement by and between the Corporation and Fleet Capital Corporation, a Rhode
Island corporation ("Lender"), successor-in-interest by merger to Fleet Capital
Corporation, a Connecticut corporation (Fleet Capital Corporation, a Connecticut
Corporation having been formerly known as Shawmut Capital Corporation and having
been the successor-in-interest by assignment to Barclays Business Credit, Inc.),
(b) to execute and deliver to Lender with such changes in the terms and
provisions thereof as the officer executing same shall, in his sole discretion,
deem advisable, (i) a certain proposed August 2000 Amendment to Second Amended
and Restated Loan and Security Agreement and Modification to Other Agreements
and to be executed by Corporation, Bayou Pumps, Inc., American MRO, Inc. and
Lender, a draft of which has been reviewed and discussed by the Board of
Directors of the Corporation, and (ii) such other agreements, instruments,
statements and writings as the officer or officers executing the same may deem
desirable or necessary in connection therewith, and (c) to perform such other
acts as the officer or officers performing such acts on behalf of the
Corporation may deem desirable or necessary in connection therewith; and be it
FURTHER RESOLVED: That said agreements will benefit the Corporation, both
directly and indirectly, and are in the best interests of the Corporation; and
be it
FURTHER RESOLVED: That said agreements and other statements in writing
executed in the name and on behalf of the Corporation by any officer of the
Corporation shall be presumed conclusively to be the instruments, the execution
of which is authorized by these resolutions; and be it
FURTHER RESOLVED: That the officers of the Corporation be, and the same
hereby are, authorized and directed to execute, in the name of and on behalf of
the Corporation, security agreements, financing statements, assignments,
collateral reports, loan statements, confirmations of delivery, lien statements,
pledge certificates, release certificates, removal reports, guaranties, cross-
collateralization agreements and such other writings and to take such other
actions as are necessary in their dealings with Lender, and any such papers
executed and any such actions taken by any of them prior to this time are
approved, ratified and confirmed; and be it
FURTHER RESOLVED: That the Secretary or any Assistant Secretary of the
Corporation, by the signature of any one or more of them, be, and the same
hereby are, authorized and directed to attest the execution by the Corporation
of the papers signed pursuant to these resolutions, to affix the seal of the
Corporation thereto, if required by Lender, and to certify to Lender the
adoption of these resolutions.
ANNEX A-1 - Page 1
<PAGE> 11
CERTIFICATION
The undersigned hereby certifies that the within and foregoing resolutions
are in effect as of the date hereof, without modification, and that the person
signing the within and foregoing Amendment on behalf of the Corporation is the
duly elected officer stated below his name, that he is authorized to sign such
Amendment, and that his signature thereon is genuine.
DATED: August ____, 2000.
-----------------------------------------
[Assistant] Secretary of the Corporation
ANNEX A-1 - Page 2
<PAGE> 12
ANNEX A-2
CERTIFIED RESOLUTIONS OF
BAYOU PUMPS, INC.'S BOARD OF DIRECTORS
RESOLVED: That any officer of Bayou Pumps, Inc., a Texas corporation (the
"Corporation"), acting alone, by his signature be, and the same hereby is,
authorized and directed, in the name of and on behalf of the Corporation (a) to
become a party to and amend that certain Second Amended and Restated Loan and
Security Agreement by and between Sepco Industries, Inc. ("Sepco") and Fleet
Capital Corporation, a Rhode Island corporation ("Lender"),
successor-in-interest by merger to Fleet Capital Corporation, a Connecticut
corporation (Fleet Capital Corporation, a Connecticut Corporation having been
formerly known as Shawmut Capital Corporation and having been the
successor-in-interest by assignment to Barclays Business Credit, Inc.), as
thereafter amended (Corporation being a present party to such Second Amended and
Restated Loan and Security Agreement), (b) to execute and deliver to Lender with
such changes in the terms and provisions thereof as the officer executing same
shall, in his sole discretion, deem advisable, (i) a certain proposed August
2000 Amendment to Second Amended and Restated Loan and Security Agreement and
Modification to Other Agreements to be executed by Corporation, Sepco, American
MRO, Inc. and Lender, a draft of which has been reviewed and discussed by the
Board of Directors of the Corporation, and (ii) such other agreements,
instruments, statements and writings as the officer or officers executing the
same may deem desirable or necessary in connection therewith, and (c) to perform
such other acts as the officer or officers performing such acts on behalf of the
Corporation may deem desirable or necessary in connection therewith; and be it
FURTHER RESOLVED: That said agreements will benefit the Corporation, both
directly and indirectly, and are in the best interests of the Corporation; and
be it
FURTHER RESOLVED: That said agreements and other statements in writing
executed in the name and on behalf of the Corporation by any officer of the
Corporation shall be presumed conclusively to be the instruments, the execution
of which is authorized by these resolutions; and be it
FURTHER RESOLVED: That the officers of the Corporation be, and the same
hereby are, authorized and directed to execute, in the name of and on behalf of
the Corporation, security agreements, financing statements, assignments,
collateral reports, loan statements, confirmations of delivery, lien statements,
pledge certificates, release certificates, removal reports, guaranties, cross-
collateralization agreements and such other writings and to take such other
actions as are necessary in their dealings with Lender, and any such papers
executed and any such actions taken by any of them prior to this time are
approved, ratified and confirmed; and be it
FURTHER RESOLVED: That the Secretary or any Assistant Secretary of the
Corporation, by the signature of any one or more of them, be, and the same
hereby are, authorized and directed to attest the execution by the Corporation
of the papers signed pursuant to these resolutions, to affix the seal of the
Corporation thereto, if required by Lender, and to certify to Lender the
adoption of these resolutions.
ANNEX A-2 - Page 1
<PAGE> 13
CERTIFICATION
The undersigned hereby certifies that the within and foregoing resolutions
are in effect as of the date hereof, without modification, and that the person
signing the within and foregoing Amendment on behalf of the Corporation is the
duly elected officer stated below his name, that he is authorized to sign such
Amendment, and that his signature thereon is genuine.
DATED: August ____, 2000.
----------------------------------------,
[Assistant] Secretary of the Corporation
ANNEX A-2 - Page 2
<PAGE> 14
ANNEX A-3
CERTIFIED RESOLUTIONS OF
AMERICAN MRO, INC.'S BOARD OF DIRECTORS
RESOLVED: That any officer of American MRO, Inc., a Nevada corporation (the
"Corporation"), acting alone, by his signature be, and the same hereby is,
authorized and directed, in the name of and on behalf of the Corporation (a) to
amend that certain Second Amended and Restated Loan and Security Agreement by
and between Sepco Industries, Inc. ("Sepco") and Fleet Capital Corporation, a
Rhode Island corporation ("Lender"), successor-in-interest by merger to Fleet
Capital Corporation, a Connecticut corporation (Fleet Capital Corporation, a
Connecticut Corporation having been formerly known as Shawmut Capital
Corporation and having been the successor-in-interest by assignment to Barclays
Business Credit, Inc.), (b) to execute and deliver to Lender with such changes
in the terms and provisions thereof as the officer executing same shall, in his
sole discretion, deem advisable, (i) a certain proposed August 2000 Amendment to
Second Amended and Restated Loan and Security Agreement and Modification to
Other Agreements to be executed by Corporation, Sepco, Bayou Pumps, Inc. and
Lender, a draft of which has been reviewed and discussed by the Board of
Directors of the Corporation, and (ii) such other agreements, instruments,
statements and writings as the officer or officers executing the same may deem
desirable or necessary in connection therewith, and (c) to perform such other
acts as the officer or officers performing such acts on behalf of the
Corporation may deem desirable or necessary in connection therewith; and be it
FURTHER RESOLVED: That said agreements will benefit the Corporation, both
directly and indirectly, and are in the best interests of the Corporation; and
be it
FURTHER RESOLVED: That said agreements and other statements in writing
executed in the name and on behalf of the Corporation by any officer of the
Corporation shall be presumed conclusively to be the instruments, the execution
of which is authorized by these resolutions; and be it
FURTHER RESOLVED: That the officers of the Corporation be, and the same
hereby are, authorized and directed to execute, in the name of and on behalf of
the Corporation, security agreements, financing statements, assignments,
collateral reports, loan statements, confirmations of delivery, lien statements,
pledge certificates, release certificates, removal reports, guaranties, cross-
collateralization agreements and such other writings and to take such other
actions as are necessary in their dealings with Lender, and any such papers
executed and any such actions taken by any of them prior to this time are
approved, ratified and confirmed; and be it
FURTHER RESOLVED: That the Secretary or any Assistant Secretary of the
Corporation, by the signature of any one or more of them, be, and the same
hereby are, authorized and directed to attest the execution by the Corporation
of the papers signed pursuant to these resolutions, to affix the seal of the
Corporation thereto, if required by Lender, and to certify to Lender the
adoption of these resolutions.
ANNEX A-3 - Page 1
<PAGE> 15
CERTIFICATION
The undersigned hereby certifies that the within and foregoing resolutions
are in effect as of the date hereof, without modification, and that the person
signing the within and foregoing Amendment on behalf of the Corporation is the
duly elected officer stated below his name, that he is authorized to sign such
Amendment, and that his signature thereon is genuine.
DATED: August ____, 2000.
------------------------------------------,
[Assistant] Secretary of the Corporation
ANNEX A-3 - Page 2
<PAGE> 16
CONSENT, RATIFICATION, AND AMENDMENT
The undersigned, DAVID R. LITTLE, has executed that certain Amended and
Restated Unconditional Guaranty, dated September 16, 1994 (the "Guaranty"), in
favor of FLEET CAPITAL CORPORATION, a Rhode Island corporation ("Lender"),
successor-in-interest by merger to Fleet Capital Corporation, a Connecticut
corporation (Fleet Capital Corporation, a Connecticut corporation, having
formerly been known as Shawmut Capital Corporation and having been the
successor-in-interest by assignment to Barclays Business Credit, Inc.). The
undersigned hereby (i) consents and agrees to the terms of the August 2000
Amendment to Second Amended and Restated Loan and Security Agreement and
Modification to Other Agreements, dated on or about the date hereof (the "Loan
Amendment"), by and among Sepco Industries, Inc., a Texas corporation, Bayou
Pumps, Inc., a Texas corporation, American MRO, Inc., a Nevada corporation, and
Lender, a copy of which has been reviewed by the undersigned, and (ii) agrees
that the Guaranty shall remain in full force and effect and shall continue to be
the legal, valid and binding obligation of the undersigned enforceable against
it in accordance with its terms. Furthermore, the undersigned hereby agrees and
acknowledges that (a) the obligations, indebtedness and liabilities arising in
connection with the Loan Amendment comprise some, but not all, of the
"Obligations" as such term is used in the Guaranty, (b) the Guaranty is an
"Other Agreement", as such term is defined in the Loan Agreement, (c) the
Guaranty, is not as of this date subject to any claims, defenses or offsets, (d)
nothing contained in the Loan Agreement or any Other Agreement entered into
prior to or as of the date hereof shall adversely affect any right or remedy of
Lender under the Guaranty, and (e) the execution and delivery of the Loan
Amendment shall in no way reduce, impair or discharge any obligations of the
undersigned as guarantor pursuant to the Guaranty and shall not constitute a
waiver by Lender of any of Lender's rights against the undersigned.
Dated: August ____, 2000.
---------------------------------------------
David R. Little, individually
CONSENT AND RATIFICATION
<PAGE> 17
CONSENT, RATIFICATION, AND AMENDMENT
The undersigned, GARY A. ALLCORN, TRUSTEE FOR KACEY JOYCE LITTLE, NICHOLAS
DAVID LITTLE AND ANDREA RAE LITTLE 1988 TRUSTS, has executed that certain
Amended and Restated Pledge Agreement dated September 16, 1994 (the "Pledge
Agreement"), in favor of FLEET CAPITAL CORPORATION, a Rhode Island corporation
("Lender"), successor-in-interest by merger to Fleet Capital Corporation, a
Connecticut corporation (Fleet Capital Corporation, a Connecticut corporation,
having been formerly known as Shawmut Capital Corporation and having been the
successor-in-interest by assignment to Barclays Business Credit, Inc.). The
undersigned hereby (i) consents and agrees to the terms of the August 2000
Amendment to Second Amended and Restated Loan and Security Agreement and
Modification to Other Agreements, dated on or about the date hereof (the "Loan
Amendment"), executed by Sepco Industries, Inc., a Texas corporation, Bayou
Pumps, Inc., a Texas corporation, American MRO, Inc., a Nevada corporation, and
Lender, a copy of which has been reviewed by the undersigned, and (ii) agrees
that the Pledge Agreement shall remain in full force and effect and shall
continue to be the legal, valid and binding obligation of the undersigned
enforceable against it in accordance with its terms. Furthermore, the
undersigned hereby agrees and acknowledges that (a) the obligations,
indebtedness and liabilities arising in connection with the Loan Amendment
comprise some, but not all, of the "Secured Indebtedness" as such term is used
in the Pledge Agreement, (b) the Pledge Agreement is an "Other Agreement" as
such term is defined in the Loan Agreement, (c) the Pledge Agreement, is not as
of the date hereof subject to any claims, defenses or offsets, (d) nothing
contained in this Agreement or any Other Agreement entered into prior to or as
of the date hereof shall adversely affect any right or remedy of Lender under
the Pledge Agreement, and (e) the execution and delivery of the Loan Amendment
shall in no way reduce, impair or discharge any obligations of the undersigned
pursuant to the Pledge Agreement and shall not constitute a waiver by Lender of
any of Lender's rights against the undersigned.
Dated: August ____, 2000.
------------------------------------
GARY A. ALLCORN, TRUSTEE FOR
KACEY JOYCE LITTLE, NICHOLAS
DAVID LITTLE AND ANDREA RAE
LITTLE 1988 TRUSTS
CONSENT AND RATIFICATION
<PAGE> 18
CONSENT, RATIFICATION, AND AMENDMENT
The undersigned has executed each of the following guaranty agreements in
favor of FLEET CAPITAL CORPORATION, a Rhode Island corporation ("Lender") (each
such guaranty agreement being hereinafter referred to as a "Guaranty"):
(1) Continuing Guaranty Agreement [Indebtedness of Sepco Industries,
Inc.], dated as of October 24, 1996;
(2) Continuing Guaranty Agreement [Indebtedness of Bayou Pumps,
Inc.], dated as of October 24, 1996; and
(3) Continuing Guaranty Agreement [Indebtedness of American MRO,
Inc.], dated as of October 24, 1996.
The undersigned hereby (i) consents and agrees to the terms of the August 2000
Amendment to Second Amended and Restated Loan and Security Agreement and
Modification to Other Agreements, dated on or about the date hereof (the "Loan
Amendment"), by and among Sepco Industries, Inc., a Texas corporation, Bayou
Pumps, Inc., a Texas corporation, American MRO, Inc., a Nevada corporation, and
Lender, a copy of which has been reviewed by the undersigned, and (ii) agrees
that each Guaranty shall remain in full force and effect and shall continue to
be the legal, valid and binding obligation of the undersigned enforceable
against it in accordance with its terms. Furthermore, the undersigned hereby
agrees and acknowledges that (a) the obligations, indebtedness and liabilities
arising in connection with the Loan Amendment comprise some, but not all, of the
"Obligations" as such term is used in each Guaranty, (b) each Guaranty is an
"Other Agreement", as such term is defined in the Loan Agreement, (c) no
Guaranty is as of this date subject to any claims, defenses or offsets, (d)
nothing contained in the Loan Agreement or any Other Agreement entered into
prior to or as of the date hereof shall adversely affect any right or remedy of
Lender under any Guaranty, and (e) the execution and delivery of the Loan
Amendment shall in no way reduce, impair or discharge any obligations of the
undersigned as guarantor pursuant to each Guaranty and shall not constitute a
waiver by Lender of any of Lender's rights against the undersigned.
Dated: August ____, 2000.
DXP ENTERPRISES, INC., formerly
known as Index, Inc.
By:
--------------------------------
Name
--------------------------------
Title:
--------------------------------
CONSENT AND RATIFICATION
<PAGE> 19
CONSENT, RATIFICATION, AND AMENDMENT
The undersigned has executed each of the following guaranty agreements in
favor of FLEET CAPITAL CORPORATION, a Rhode Island corporation ("Lender") (each
such guaranty agreement being hereinafter referred to as a "Guaranty"):
(1) Continuing Guaranty Agreement [Indebtedness of Sepco Industries,
Inc.], dated as of June 16, 1997;
(2) Continuing Guaranty Agreement [Indebtedness of Bayou Pumps,
Inc.], dated as of June 16, 1997; and
(3) Continuing Guaranty Agreement [Indebtedness of American MRO,
Inc.], dated as of June 16, 1997.
The undersigned hereby (i) consents and agrees to the terms of the August 2000
Amendment to Second Amended and Restated Loan and Security Agreement and
Modification to Other Agreements, dated on or about the date hereof (the "Loan
Amendment"), by and among Sepco Industries, Inc., a Texas corporation, Bayou
Pumps, Inc., a Texas corporation, American MRO, Inc., a Nevada corporation, and
Lender, a copy of which has been reviewed by the undersigned, and (ii) agrees
that each Guaranty shall remain in full force and effect and shall continue to
be the legal, valid and binding obligation of the undersigned enforceable
against it in accordance with its terms. Furthermore, the undersigned hereby
agrees and acknowledges that (a) the obligations, indebtedness and liabilities
arising in connection with the Loan Amendment comprise some, but not all, of the
"Obligations" as such term is used in each Guaranty, (b) each Guaranty is an
"Other Agreement", as such term is defined in the Loan Agreement, (c) no
Guaranty is as of this date subject to any claims, defenses or offsets, (d)
nothing contained in the Loan Agreement or any Other Agreement entered into
prior to or as of the date hereof shall adversely affect any right or remedy of
Lender under any Guaranty, and (e) the execution and delivery of the Loan
Amendment shall in no way reduce, impair or discharge any obligations of the
undersigned as guarantor pursuant to each Guaranty and shall not constitute a
waiver by Lender of any of Lender's rights against the undersigned.
Dated: August ____, 2000
DXP ACQUISITION, INC., d/b/a
STRATEGIC ACQUISITION, INC.
By:
--------------------------------
Name
--------------------------------
Title:
--------------------------------
CONSENT AND RATIFICATION
<PAGE> 20
CONSENT, RATIFICATION, AND AMENDMENT
The undersigned has executed each of the following guaranty agreements in
favor of FLEET CAPITAL CORPORATION, a Rhode Island corporation ("Lender") (each
such guaranty agreement being hereinafter referred to as a "Guaranty"):
(1) Continuing Guaranty Agreement [Indebtedness of Sepco Industries,
Inc.], dated as of May 29, 1997;
(2) Continuing Guaranty Agreement [Indebtedness of Bayou Pumps,
Inc.], dated as of May 29, 1997; and
(3) Continuing Guaranty Agreement [Indebtedness of American MRO,
Inc.], dated as of May 29, 1997.
The undersigned hereby (i) consents and agrees to the terms of the August 2000
Amendment to Second Amended and Restated Loan and Security Agreement and
Modification to Other Agreements, dated on or about the date hereof (the "Loan
Amendment"), by and among Sepco Industries, Inc., a Texas corporation, Bayou
Pumps, Inc., a Texas corporation, American MRO, Inc., a Nevada corporation, and
Lender, a copy of which has been reviewed by the undersigned, and (ii) agrees
that each Guaranty shall remain in full force and effect and shall continue to
be the legal, valid and binding obligation of the undersigned enforceable
against it in accordance with its terms. Furthermore, the undersigned hereby
agrees and acknowledges that (a) the obligations, indebtedness and liabilities
arising in connection with the Loan Amendment comprise some, but not all, of the
"Obligations" as such term is used in each Guaranty, (b) each Guaranty is an
"Other Agreement", as such term is defined in the Loan Agreement, (c) no
Guaranty is as of this date subject to any claims, defenses or offsets, (d)
nothing contained in the Loan Agreement or any Other Agreement entered into
prior to or as of the date hereof shall adversely affect any right or remedy of
Lender under any Guaranty, and (e) the execution and delivery of the Loan
Amendment shall in no way reduce, impair or discharge any obligations of the
undersigned as guarantor pursuant to each Guaranty and shall not constitute a
waiver by Lender of any of Lender's rights against the undersigned.
Dated: August ____, 2000.
PELICAN STATE SUPPLY
COMPANY, INC.
By:
-------------------------------
Name
-------------------------------
Title:
-------------------------------
CONSENT AND RATIFICATION
