ex103.htm


Exhibit 10.3







SECOND AMENDMENT TO CREDIT AGREEMENT












THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is made and entered into as of July 25, 2011 by and among DXP ENTERPRISES, INC., a Texas corporation (the “Company”); each of the Lenders (as defined below) party hereto, and WELLS FARGO BANK, NATIONAL ASSOCIATION, acting as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the “Administrative Agent”).







RECITALS







A.           The Company, the lenders from time to time party thereto (individually, a “Lender” and collectively, the “Lenders”) and the Administrative Agent executed and delivered that certain Credit Agreement dated as of August 28, 2008, as amended by instrument dated as of March 15, 2010.  Said Credit Agreement, as amended, supplemented and restated, is herein called the “Credit Agreement”.  Any capitalized term used in this Amendment and not otherwise defined shall have the meaning ascribed to it in the Credit Agreement.







B.           The Company, the Lenders and the Administrative Agent desire to amend the Credit Agreement in certain respects.







NOW, THEREFORE, in consideration of the premises and the mutual agreements, representations and warranties herein set forth, and further good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company, the Lenders and the Administrative Agent do hereby agree as follows:







Amendments to Credit Agreement.







The definition of “Applicable Rate” set forth in Section 1.01 of the Credit Agreement is hereby amended to read in its entirety as follows:







“Applicable Rate” means, for any day with respect to any ABR Loan or Eurodollar Loan or with respect to the commitment fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption “Revolving Loan ABR Spread”, “Revolving Loan Eurodollar Spread”, “Term Loan ABR Spread”, “Term Loan Eurodollar Spread” or “Commitment Fee Rate”, as the case may be, based upon the Leverage Ratio as of the most recent determination date:








	
Leverage Ratio

	
Revolving Loan ABR Spread

	
Revolving Loan Eurodollar Spread

	
Commitment Fee Rate


	
Category 1:


greater than or equal to 3.50 to 1.00

	
1.25%

	
2.75%

	
0.40%


	
Category 2:


greater than or equal to 3.00 to 1.00 but less than 3.50 to 1.00

	
0.75%

	
2.25%

	
0.35%


	
Category 3:


greater than or equal to 2.50 to 1.00 but less than 3.00 to 1.00

	
0.50%

	
2.00%

	
0.30%


	
Category 4:


greater than or equal to 2.00 to 1.00 but less than 2.50 to 1.00

	
0.25%

	
1.75%

	
0.25%


	
Category 5:


greater than or equal to 1.50 to 1.00 but less than 2.00 to 1.00

	
0.00%

	
1.50%

	
0.20%


	
Category 6:


less than 1.50 to 1.00

	
minus 0.25%

	
1.25%

	
0.15%












For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of the end of each fiscal quarter of the Borrower’s fiscal year based upon the Borrower’s consolidated financial statements delivered pursuant to Sections 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting from a change in the Leverage Ratio shall be effective during the period commencing on and including the date of delivery to the Administrative Agent of such consolidated financial statements indicating such change and ending on the date immediately preceding the effective date of the next such change; but the Leverage Ratio shall be deemed to be in Category 1 at any time that an Event of Default has occurred which is continuing or at the request of the Required Lenders if the Borrower fails to timely deliver the consolidated financial statements required to be delivered by it pursuant to Sections 5.01(a) or (b), during the period from the deadline for delivery thereof until such consolidated financial statements are received.







The definition of “Asset Coverage Ratio” set forth in Section 1.01 of the Credit Agreement is hereby amended to read in its entirety as follows:







“Asset Coverage Ratio” means, as of any day, the ratio of (x) the sum of (i) ninety percent (90%) of Net Accounts Receivable of the Borrower and its Subsidiaries as of the effective date of the most recent financial statement delivered by Borrower pursuant to Sections 5.01(a) or (b) plus sixty-five percent (65%) of Net Inventory of the Borrower and its Subsidiaries as of the effective date of the most recent financial statement delivered by Borrower pursuant to Sections 5.01(a) or (b) plus fifty percent (50%) of the Net Book Value of furniture, fixtures and equipment of the Borrower and its Subsidiaries as of the effective date of the most recent financial statement delivered by Borrower pursuant to Sections 5.01(a) or (b) to (y) the aggregate outstanding amount of the Revolving Exposure as of the date of calculation of the Asset Coverage Ratio.







The definition of “Foreign Subsidiaries” set forth in Section 1.01 of the Credit Agreement is hereby amended to read in its entirety as follows:







“Foreign Subsidiaries” means Subsidiaries of the Borrower which are organized under the laws of a jurisdiction other than the United States of America, any State of the United States or any political subdivision thereof.  Notwithstanding the foregoing, to the extent that the Borrower shall have elected to treat, for all purposes under this Agreement, a Subsidiary which is organized under applicable law of Canada (or any province of Canada) in the same manner as Borrower’s Subsidiaries which are not Foreign Subsidiaries (including the execution and delivery by such Canadian Subsidiary of a Guaranty and all applicable Security Documents), then such Canadian Subsidiary shall be excluded from the definition of “Foreign Subsidiaries”.







The definition of “Revolving Maturity Date” set forth in Section 1.01 of the Credit Agreement is hereby amended to read in its entirety as follows:







“Revolving Maturity Date” means July 25, 2016.







Section 5.13 of the Credit Agreement is hereby amended to read in its entirety as follows:







SECTION 5.13.  Financial Covenants.  The Borrower will have (in each case, in accordance with GAAP):







(a)           Fixed Charge Coverage Ratio – a Fixed Charge Coverage Ratio of not less than 1.50 to 1.00 as of the last day of each fiscal quarter.







(b)           Leverage Ratio – a Leverage Ratio of not greater than 4.00 to 1.00 as of the last day of each fiscal quarter.







(c)           Asset Coverage Ratio – an Asset Coverage Ratio of not less than 1.00 to 1.00 at all times.







Section 6.08 of the Credit Agreement is hereby amended to read in its entirety as follows:







SECTION 6.08.  Restricted Payments.  The Borrower will not, nor will it permit any other Loan Party to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, (i) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (ii) the Borrower may purchase, redeem and retire Equity Interests for aggregate consideration not exceeding, from and after July 25, 2011, $5,000,000, (iii) the Borrower may purchase, redeem and retire any Equity Interests using proceeds realized from the sale of additional shares of the common stock of Borrower, (iv) Subsidiaries of Borrower may declare and pay dividends ratably with respect to their Equity Interests, (v) the Borrower may pay preferred dividends in cash up to a maximum aggregate amount of $90,000 per annum, (vi) so long as no Event of Default has occurred which has not been cured or waived, or would reasonably be expected to result from such payment (on a pro forma basis), the Borrower may pay preferred dividends in cash in excess of $90,000 per annum if, after giving effect thereto, the Fixed Charge Coverage Ratio is equal to or greater than 1.50 to 1.00, (vii) so long as no Event of Default has occurred which has not been cured or waived, or would reasonably be expected to result from such payment (on a pro forma basis), the Borrower may make payments in cash of accrued interest on Subordinated Debt (a) if, after giving effect thereto, the Fixed Charge Coverage Ratio is equal to or greater than 1.50 to 1.00 or (b) if such cash payments are paid from the proceeds of the issuance of new Equity Interests and (viii) the Borrower may make payments of accrued interest on Subordinated Debt paid in kind or otherwise by capitalizing the same.







Section 6.15 of the Credit Agreement is hereby amended to read in its entirety as follows:







SECTION 6.15.  Acquisitions.  The Borrower will not, and will not permit any other Loan Party to, enter into any Acquisition other than an Acquisition (which may be way of a merger with and into the Borrower or another Loan Party so long as the Borrower or the applicable Loan Party is the surviving entity), satisfying the following criteria:







(a)           any Acquisition of Equity Interests shall require the acquisition of all (but not less than all) of the Equity Interests in and to the applicable Person;







(b)           no Default or Event of Default shall have occurred and be continuing or, on a pro forma basis, would reasonably be expected to result from such Acquisition;







(c)           the Borrower can demonstrate, on a pro forma basis, after giving effect to such Acquisition that (x) there is at least ten percent (10%) availability for Loan Borrowings hereunder and (y) unless the Leverage Ratio, after giving effect to such Acquisition, is less than 3.50 to 1.00, the aggregate of all consideration (including any Subordinated Debt and any equity consideration) paid in connection with Acquisitions (after giving effect to such Acquisition) during the twelve month period following the end of the fiscal quarter in which the Leverage Ratio exceeds 3.50 to 1.00 shall be less than $70,000,000; and







(d)           the Borrower shall have delivered (or caused to be delivered) to the Administrative Agent such other documents as may be reasonably requested by the Administrative Agent in connection with such Acquisition.







Schedule 2.01 to the Credit Agreement is hereby amended to be identical to Schedule 2.01 attached hereto, reflecting Wells Fargo Bank, National Association as the sole Lender.







Exhibit B to the Credit Agreement is hereby amended to be identical to Exhibit B attached hereto.







Conditions Precedent.  The effectiveness of this Amendment shall be conditioned each of the following:







(a)           the Administrative Agent shall have received from the Loan Parties and all of the Lenders either (1) a counterpart of this Amendment signed on behalf of such party or (2) written evidence satisfactory to the Administrative Agent (which may include telecopy or e-mail transmission of a signed signature page of this Amendment) that such party has signed counterparts of this Amendment.







(b)           the Administrative Agent shall have received original executed counterpart of the Note evidencing the Revolving Commitments, as reallocated pursuant to this Amendment (which Note shall replace the Notes previously executed to evidence Revolving Loans).







(b)           the entire aggregate unpaid principal balance of the Term Loans, plus all accrued and unpaid interest on the aggregate unpaid principal balance of the Term Loans, shall have been paid in full.







(d)           the Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Company and the authorization of the execution and delivery of this Amendment, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.







Ratification.  Except as expressly amended by this Amendment, the Credit Agreement and the other Loan Documents shall remain in full force and effect.  None of the rights, title and interests existing and to exist under the Credit Agreement are hereby released, diminished or impaired, and the Company hereby reaffirms all covenants, representations and warranties in the Credit Agreement.







Expenses.  The Company shall pay to the Administrative Agent all reasonable fees and expenses of its legal counsel incurred in connection with the execution of this Amendment.  In addition, the Borrower agrees to pay to the Administrative Agent, for its own account and for the account of the respective Lenders, fees payable in the amounts and at the times separately agreed upon between the Borrower and the Administrative Agent.







Certifications.  The Company hereby certifies that (a) no material adverse change in the business, assets, operations or condition, financial or otherwise of the Company and its Subsidiaries, taken as a whole, since December 31, 2007 and (b) no Default or Event of Default has occurred and is continuing or will occur as a result of this Amendment.







Miscellaneous.  This Amendment (a) shall be binding upon and inure to the benefit of the Company, the Lenders and the Administrative Agent and their respective successors, assigns, receivers and trustees; (b) may be modified or amended only by a writing signed by the required parties; (c) shall be governed by and construed in accordance with the laws of the State of Texas and the United States of America; (d) may be executed in several counterparts by the parties hereto on separate counterparts, and each counterpart, when so executed and delivered, shall constitute an original agreement, and all such separate counterparts shall constitute but one and the same agreement and (e) together with the other Loan Documents, embodies the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, consents and understandings relating to such subject matter.  The headings herein shall be accorded no significance in interpreting this Amendment.







[Signature Pages Follow]






NOTICE PURSUANT TO TEX. BUS. & COMM. CODE §26.02







THE CREDIT AGREEMENT, AS AMENDED BY THIS AMENDMENT, AND ALL OTHER LOAN DOCUMENTS EXECUTED BY ANY OF THE PARTIES PRIOR HERETO OR SUBSTANTIALLY CONCURRENTLY HEREWITH CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND 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.







IN WITNESS WHEREOF, the Company, the Lenders and the Administrative Agent have caused this Amendment to be signed by their respective duly authorized officers, effective as of the date first above written.

















DXP ENTERPRISES, INC.,


a Texas corporation












By: /s/Mac McConnell                                                                           


Name:           Mac McConnell



	
  

	
Title:

	
Senior Vice President, Chief Financial Officer and Secretary
















The undersigned Subsidiaries of the Borrower hereby join in this Amendment to evidence their consent to execution by Borrower of this Amendment, to confirm that each Loan Document now or previously executed by the undersigned applies and shall continue to apply to this Amendment, and to acknowledge that without such consent and confirmation, Lenders would not execute this Amendment and to join in the notice pursuant to Tex. Bus. & Comm. Code §26.02 set forth above.







PRECISION INDUSTRIES, INC.,


a Nebraska corporation












By:              /s/Mac McConnell                                                              


Name:              Mac McConnell


Title:              Secretary and Treasurer

















SEPCO INDUSTRIES, INC.,


a Texas corporation


PELICAN STATE SUPPLY COMPANY, INC.,


a Nevada corporation


                                                                DXP ACQUISITION, INC.,


a Nevada corporation


                                                                AMERICAN MRO, INC.,


a Nevada corporation


                                                                R.A. MUELLER., INC.,


an Ohio corporation


DXP HOLDINGS, INC.,


a Texas corporation












By:              /s/Mac McConnell                                                              


Name:              Mac McConnell


Title:              Vice President, Treasurer and Secretary












PMI OPERATING COMPANY, LTD.,


a Texas limited partnership







By:       Pump-PMI, LLC,


a Texas limited liability company,


its general partner







By:          DXP Enterprises, Inc.,


a Texas corporation,


its sole member







By:             /s/Mac McConnell                                                   


Name:             Mac McConnell



	
  

	
Title:

	
Senior Vice President, Chief Financial Officer and Secretary







 

 












`                                           PMI INVESTMENT, LLC,


a Delaware limited liability company


 

 







By:              /s/David R. Little                                                              


Name:              David R. Little


Title:              Manager

















                                                                PUMP-PMI LLC,


a Texas limited liability company







By:       DXP Enterprises, Inc.,


a Texas corporation,


its sole member







By:          /s/Mac McConnell                                                           


Name:             Mac McConnell



	
  

	
Title:

	
Senior Vice President, Chief Financial Officer and Secretary






















VERTEX CORPORATE HOLDINGS, INC.,


 a Delaware corporation












By:       /s/Mac McConnell                                                                    


Name:             Mac McConnell



	
  

	
Title:

	
Senior Vice President, Chief Financial Officer and Secretary






















PAWTUCKET HOLDINGS, INC.,


a Delaware corporation












By:       /s/Mac McConnell                                                                    


Name:             Mac McConnell



	
  

	
Title:

	
Senior Vice President, Chief Financial Officer and Secretary






















PFI, LLC,


a Rhode Island limited liability company







By:           Pawtucket Holdings, Inc.,


a Delaware corporation







By:          /s/Mac McConnell                                                           


Name:             Mac McConnell



	
  

	
Title:

	
Senior Vice President, Chief Financial Officer and Secretary



























DXP ENERGY SERVICES, LLC,


a Texas limited liability company












By:       /s/Mac McConnell                                                                    


Name:             Mac McConnell



	
  

	
Title:

	
Senior Vice President, Chief Financial Officer and Secretary





















WELLS FARGO BANK, NATIONAL ASSOCIATION, individually and as Administrative Agent












By:/s/Thomas F. Caver 


Name:  Thomas F. Caver, III 


Title:  Vice President 











SCHEDULE 2.01








	
Lender

	
Revolving Commitments as of July 25, 2011


	  	  
	
Wells Fargo Bank, National Association

	
$150,000,000


	  	  
	  	  
	  	  
	  	  
	  	  
	  	  















COMPLIANCE CERTIFICATE


 









The undersigned hereby certifies that he or she is the __________________ of DXP ENTERPRISES, INC., a Texas corporation (the “Borrower”), and that as such he or she is authorized to execute this certificate on behalf of the Borrower pursuant to the Credit Agreement (the “Agreement”) dated as of August 28, 2008, by and among Borrower, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, and the lenders from time to time party thereto; and that a review has been made under his or her supervision with a view to determining whether the Loan Parties have fulfilled all of their respective obligations under the Agreement, the Notes and the other Loan Documents; and further certifies, represents and warrants that to his or her knowledge (each capitalized term used herein having the same meaning given to it in the Agreement unless otherwise specified):


(a)           The financial statements delivered to the Administrative Agent concurrently with this Compliance Certificate have been prepared in accordance with GAAP consistently followed throughout the period indicated and fairly present in all material respects the financial condition and results of operations of the applicable Persons as at the end of, and for, the period indicated (subject, in the case of quarterly financial statements, to normal changes resulting from year-end adjustments and the absence of certain footnotes).


 


(b)           No Default or Event of Default has occurred and is continuing or, if a Default or Event of Default has occurred and is continuing, the details thereof and the action taken or proposed to be taken is the following:  [specify details]


 


(c)           In this regard, the compliance with the provisions of Sections 5.13, 6.13 and 6.14 as of the effective date of the financial statements delivered to the Administrative Agent concurrently with this Compliance Certificate is as follows:


 



	
  

	
(i)

	
Section 5.13(a) – Fixed Charge Coverage Ratio












Actual                                                     Required







 to 1.00                                           1.50 to 1.00








	
  

	
(ii)

	
Section 5.13(b) – Leverage Ratio












Actual                                                     Required







 to 1.00                                           4.00 to 1.00








	
  

	
(iii)

	
Section 5.13(c) – Asset Coverage Ratio












Actual                                                     Required







 to 1.00                                           1.00 to 1.00













	
  

	
(v)

	
Section 6.13 – Capital Expenditures












Year to Date Actual                                                     Permitted







$_______________                                                     $_______________













	
  

	
(vi)

	
Section 6.14 – Annual Operating Lease Expense












Current Actual                                                                Permitted







$_______________                                                     $10,000,000












DATED as of _____________, 201___.







 







 







 







 


[SIGNATURE OF AUTHORIZED OFFICER]