Exhibit 10.1Execution Version

Dated as of August 6, 2015

 

This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is by and among DXP ENTERPRISES, INC., a Texas corporation (“US Borrower”), DXP CANADA ENTERPRISES LTD., a corporation organized under the laws of British Columbia, Canada (“Canadian Borrower” and together with US Borrower, the “Borrowers”), the lenders who are party to this Amendment (the “Consenting Lenders”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).

 

 

WHEREAS, the Borrowers, the lenders party thereto (the “Lenders”) and the Administrative Agent entered into an Amended and Restated Credit Agreement dated as of January 2, 2014 (as amended hereby and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”); and

 

WHEREAS, the Borrowers have requested that the Administrative Agent and the Lenders agree to amend the Credit Agreement as specifically set forth herein and, subject to the terms of this Amendment, the Administrative Agent and the Consenting Lenders have agreed to grant such request of the Borrowers.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

 

Section 1. Capitalized Terms.  All capitalized terms not otherwise defined in this Amendment (including without limitation in the introductory paragraph and the Preliminary Statements hereto) shall have the meanings as specified in the Credit Agreement.

 

Section 2. Amendments to Credit Agreement.  Subject to and in accordance with the terms and conditions set forth herein the Administrative Agent and the Lenders party hereto hereby agree as follows:

 

(a) Section 1.1 of the Credit Agreement is hereby amended by:

 

(i) amending the definition of “Applicable Rate” by amending and restating the table therein in its entirety as follows:

 

Pricing Level	Consolidated Leverage Ratio	Commitment Fee	LIBOR Rate and CDOR Rate +	Base Rate and Canadian Base Rate +
I	Less than 1.50 to 1.00	0.20%	1.25%	0.25%
II	Greater than or equal to 1.50 to 1.00 but less than 2.00 to 1.00	0.25%	1.50%	0.50%
III	Greater than or equal to 2.00 to 1.00 but less than 2.50 to 1.00	0.30%	1.75%	0.75%
IV	Greater than or equal to 2.50 to 1.00 but less than 3.00 to 1.00	0.35%	2.00%	1.00%
V	Greater than or equal to 3.00 to 1.00 but less than 3.50 to 1.00	0.40%	2.25%	1.25%
VI	Greater than or equal to 3.50 to 1.00 but less than 4.00 to 1.00	0.45%	2.50%	1.50%
VII	Greater than or equal to 4.00 to 1.00	0.50%	2.75%	1.75%

 

(ii) amending and restating the definition of “LIBOR Rate” by adding the following sentence at the end of such definition:

 

 

“Notwithstanding the foregoing, if the LIBOR Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.”

 

(b) amending Section 9.12(a) of the Credit Agreement by amending and restating the table therein in its entirety as follows:

 

Period	Maximum Ratio
June 30, 2015 through September 30, 2016	4.25 to 1.00
December 31, 2016	4.00 to 1.00
March 31, 2017 through June 30, 2017	3.75 to 1.00
September 30, 2017 through December 31, 2017	3.50 to 1.00
March 31, 2018 and thereafter	3.25 to 1.00

(c) amending Section 9.12(b) of the Credit Agreement by deleting such Section in its entirety and replacing it with the following:

 

“(b)           Consolidated Fixed Charge Coverage Ratio.  As of the last day of any fiscal quarter ending during the periods specified below, permit the Consolidated Fixed Charge Ratio to be less than the corresponding ratio set forth below:

 

Period	Minimum Ratio
June 30, 2015 through December 31, 2016	1.15 to 1.00
March 31, 2017 and thereafter	1.25 to 1.00

Section 3. Conditions of Effectiveness.  The effectiveness of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:

 

(a) the Administrative Agent shall have received counterparts of this Amendment executed by each Borrower, each other Credit Party, the Administrative Agent and the Required Lenders;

 

(b) the representations and warranties of the Borrowers contained in Section 4 shall be true and correct;

 

(c) the Administrative Agent shall have received, for the account of each Consenting Lender which delivered its executed signature page to this Amendment by the deadline communicated by the Administrative Agent to the Lenders, a fee in an amount equal to 0.10% times the principal amount of such Consenting Lender’s Commitment as of the date of this Amendment; and

 

(d) all reasonable out-of-pocket costs and expenses incurred by the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees, charges and disbursements of legal counsel for the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Amendment) shall have been paid by the Borrowers.

 

Section 4. Representations and Warranties of the Borrowers.  Each Borrower represents and warrants as follows:

 

(a) The execution, delivery and performance by such Borrower of its obligations in connection with this Amendment are within its corporate (or other organizational) powers, have been duly authorized by all necessary corporate (or other organizational) action and do not and will not (i) violate any provision of its articles or certificate of incorporation or bylaws or similar organizing or governing documents of such Borrower, (ii) contravene any Applicable Law which is applicable to such Borrower, (iii) conflict with, result in a breach of or constitute (with notice, lapse of time or both) a default under any material indenture or instrument or other material agreement to which such Borrower is a party, by which it or any of its properties is bound or to which it is subject, or (iv) except for the Liens granted in favor of the Administrative Agent pursuant to the Security Documents, result in or require the creation or imposition of any Lien upon any of its properties or assets, except, in the case of clauses (ii) and (iii) above, to the extent such contraventions, conflicts, breaches or defaults could not reasonably be expected to have a Material Adverse Effect.

 

(b) Such Borrower has taken all necessary corporate (or other organizational) action to execute, deliver and perform this Amendment and has validly executed and delivered each of this Amendment.  This Amendment constitutes the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, by general equitable principles or by principles of good faith and fair dealing.

 

(c) No material consent, approval, authorization or other action by, notice to, or registration or filing with, any Governmental Authority or other Person is or will be required as a condition to or otherwise in connection with the due execution, delivery and performance by such Borrower of this Amendment except such as have been obtained or made and are in full force and effect and except filings necessary to perfect Liens created under the Loan Documents.

 

(d) After giving effect to this Amendment, the representations and warranties contained in each of the Loan Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date (other than any such representations or warranties that, by their terms, refer to a specific date, in which case as of such specific date).

 

(e) No Default or Event of Default shall exist immediately prior to and after giving effect to this Amendment.

 

Section 5. Reference to and Effect on the Loan Documents.  On and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the Notes and each of the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Amendment and this Amendment shall constitute a Loan Document.

 

(a) The Credit Agreement, the Notes and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.  Without limiting the generality of the foregoing, the Security Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Credit Parties under the Loan Documents, in each case as amended or converted by this Amendment.

 

(b) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

 

Section 6. Reaffirmations.  Each Credit Party (a) consents to this Amendment and agrees that the transactions contemplated by this Amendment shall not limit or diminish the obligations of such Person, or release such Person from any obligations, under any of the Loan Documents to which it is a party, (b) confirms and reaffirms its obligations under each of the Loan Documents to which it is a party and (c) agrees that each of the Loan Documents to which it is a party remain in full force and effect and are hereby ratified and confirmed.

 

Section 7. Execution in Counterparts.  This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  Delivery of an executed counterpart of a signature page of this Amendment by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Amendment.

 

Section 8. Governing Law.  This Amendment and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Amendment and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of New York.

 

Section 9. Entire Agreement.  This Amendment and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent, the Issuing Lender, each Swingline Lender and/or the Arranger, constitute the entire agreement among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.

 

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

DXP ENTERPRISES, INC., as US Borrower

 

By: /S/ Mac McConnell

Name:           Mac McConnell

 

Title:           Senior Vice President, Chief Financial Officer                             and Secretary

 

DXP CANADA ENTERPRISES LTD., as Canadian Borrower

 

By:  /S/ Mac McConnell

Name: Mac McConnell

 

Title: Chief Financial Officer

 

DXP HOLDINGS, INC., as a US Subsidiary Guarantor

 

By:  /S/ Mac McConnell

Name: Mac McConnell

Title: Vice President

 

PMI OPERATING COMPANY, LTD., as a US Subsidiary Guarantor

 

By:  PUMP-PMI, LLC, as General Partner

 

        By:  /S/ Mac McConnell

        Name: Mac McConnell

        Title: Secretary and Treasurer

 

PMI INVESTMENT, LLC, as a US Subsidiary Guarantor

 

By:  /S/ Mac McConnell

Name: Mac McConnell

Title: Secretary and Treasurer

 

PUMP-PMI, LLC, as a US Subsidiary Guarantor

 

By:  /S/ Mac McConnell

Name:           Mac McConnell

Title:           Secretary and Treasurer

 

VERTEX CORPORATE HOLDINGS, INC., as a US Subsidiary Guarantor

 

By:  /S/ Mac McConnell

Name: Mac McConnell

Title: Vice President, Secretary and Treasurer

 

VERTEX-PFI, INC., as a US Subsidiary Guarantor

 

By:  /S/ Mac McConnell

Name: Mac McConnell

Title: Vice President and Secretary

 

PFI, LLC, as a US Subsidiary Guarantor

 

By:  /S/ Mac McConnell

Name:           Mac McConnell

Title: Vice President and Secretary

 

B27 HOLDINGS CORP., as Subsidiary Guarantor

 

By:  /S/ Mac McConnell

Name: Mac McConnell

Title: Vice President, Chief Financial Officer and Secretary

 

B27, LLC, as a US Subsidiary Guarantor

 

By:  /S/ Mac McConnell

Name: Mac McConnell

Title: Vice President and Chief Financial Officer

 

B27 RESOURCES, INC., as a US Subsidiary Guarantor

 

By:  /S/ Mac McConnell

Name:           Mac McConnell

Title: Vice President and Chief Financial Officer

 

BEST HOLDING, LLC, as Subsidiary Guarantor

 

By:  /S/ Mac McConnell

Name: Mac McConnell

Title:           Vice President and Chief Financial Officer

 

BEST EQUIPMENT SERVICE & SALES COMPANY, LLC, as Subsidiary Guarantor

 

By:  /S/ Kent Yee

Name:           Kent Yee

Title: Secretary

 

PUMPWORKS 610, LLC, as Subsidiary Guarantor

 

By:  /S/ Kent Yee

Name: Kent Yee

Title: Secretary

 

INTEGRATED FLOW SOLUTIONS, LLC, as a US Subsidiary Guarantor

 

By:  /S/ Kent Yee

Name: Kent Yee

Title: Secretary

 

INDUSTRIAL PARAMEDIC SERVICES LTD., as a Canadian Subsidiary Guarantor

 

By:  /S/ Mac McConnell

Name:           Mac McConnell

Title:  Director

 

HSE INTEGRATED LTD., as a Canadian Subsidiary Guarantor

 

By:  /S/ Mac McConnell

Name:           Mac McConnell

Title:           Senior Vice President

 

NATIONAL PROCESS EQUIPMENT INC., as a Canadian Subsidiary Guarantor

 

By:  /S/ Mac McConnell

Name:           Mac McConnell

Title:           Chief Financial Officer

 

ADMINISTRATIVE AGENT AND LENDERS:

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent, Swingline Lender, Issuing Lender and Lender

By:  /S/ Tom Caver

Name: Thomas F. Caver, III

Title: Senior Vice President

BANK OF AMERICA, N.A., as Lender

 

By:  /S/ Juan Trejo

Name: Juan Trejo

Title: Vice President

BANK OF AMERICA, N.A. (Canada Branch), as Lender

 

By: /S/ Juan Trejo

Name: Juan Trejo

Title: Vice President

 

 

COMPASS BANK, as Lender

 

By:  /S/ Frank Carvelli

Name: Frank Carvelli

Title: Senior Vice President

REGIONS BANK, as Lender

 

By:  /S/ Joey Powell

Name: Joey Powell

Title: Sr. Vice President

BRANCH BANKING AND TRUST COMPANY, as Lender

 

By:  /S/ Benjamin Shields

Name: Benjamin Shields

Title: Banking Officer

 

 

U.S. BANK NATIONAL ASSOCIATION, as Lender

 

By:  /S/ Jonathan F Lindvall

Name: Jonathan F. Lindvall

Title: Vice President

 

 

 

JPMORGAN CHASE BANK, N.A., as Lender

 

By:  /S/ Jennifer Kalvaitis

Name: Jennifer Kalvaitis

Title: Executive Director

 

ACKNOWLEDGED BY:

 

JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as its Applicable Designee

 

By:  /S/ Michael N Tam

Name: Michael N. Tam

Title: Senior Vice President

 

ROYAL BANK OF CANADA, as Lender

 

By:  /S/ Emile Marx

Name: Emile Marx

Title: Director, NCG Finance

 

By:  /S/ Nicole Bradshaw

Name: Nicole Bradshaw

Title: VP, NCG Finance

AMEGY BANK NATIONAL ASSOCIATION, as Lender

 

By:  /S/ Jeremy A Newsom

Name: Jeremy A. Newsom

Title: Senior Vice President

 

BOKF, NA dba Bank of Texas, as Lender

 

By:  /S/ Marian Livingston

Name: Marian Livingston

Title: Senior Vice President

 

CADENCE BANK, as Lender

 

By: /S/ H Gale Smith

Name: H. Gale Smith, Jr.

Title: Executive Vice President