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EXHIBIT 10.1
APRIL 2001 AMENDMENT TO SECOND AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
AND MODIFICATION TO OTHER AGREEMENTS
THIS APRIL 2001 AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT AND MODIFICATION TO OTHER AGREEMENTS (this "Amendment") is
made and entered into this 16th day of April, 2001, 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 April 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, and as amended
by that certain August 2000
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Amendment to Second Amended and Restated Loan and Security Agreement and
Modification to Other Agreements, executed by Borrower and Lender, and as
amended by that certain November 2000 Amendment to Second Amended and Restated
Loan and Security Agreement and Modification to Other Agreements, entered into
on November 13, 2000, 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 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; ADDITION OF NEW
DEFINITION. Effective as of the date of execution of this Amendment, Section 1.1
of the Loan Agreement is hereby amended by adding the following new definition
thereto, to be inserted in its proper alphabetical order:
"APRIL 2001 AMENDMENT - that certain April 2001 Amendment to
Second Amendment and Restated Loan and Security Agreement, executed by
Lender and Borrower."
2.02 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 Million Eight Hundred Thousand Dollars ($30,800,000)", and
substituting therefor the phrase "Twenty-Seven Million Eight Hundred Thousand
Dollars ($27,800,000)."
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2.03 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 Twenty-Seven Million Eight Hundred
Thousand Dollars ($27,800,000)."
2.04 AMENDMENT TO DEFINITION OF "TERM NOTE" IN SECTION 1.1 OF THE LOAN
AGREEMENT. Effective as of the date of execution of this Amendment, the
definition of "Term Note" in Section 1.1 of the Loan Agreement is hereby amended
and restated to read in its entirety as follows:
"TERM NOTE - that certain Secured Promissory Note, dated March
1, 1994, in the original principal amount of $1,329,277.37, executed by
Sepco, and payable to the order of Lender, as renewed, extended,
modified and restated from time to time, including, without limitation,
as modified and extended by (i) the Third Amendment Modification
Agreements (which Third Amendment Modification Agreements, among other
things, modified the Term Note to reflect the increase of the Term Loan
to $5,000,000), (ii) the Sixth Amendment (which Sixth Amendment, among
other things, modified the Term Note to reflect the increase of the
Term Loan to $9,887,000), (iii) the Seventh Amendment (which Seventh
Amendment, among other things, modified the Term Note to reflect the
increase of the Term Loan to $12,387,000), (iv) that certain May 1999
Amendment to Second Amended and Restated Loan and Security Agreement
and Modification to Other Agreements executed by Borrower (which
document, among other things, modified the Term Note to extend the
maturity of the Term Loan until April 1, 2000), (v) that certain August
1999 Amendment to Second Amended and Restated Loan and Security
Agreement and Modification to Other Agreements, executed by Borrower
and Lender (which document, among other things, modified the Term Note
to extend the maturity of the Term Loan until April 1, 2001), (vi) that
certain August 2000 Amendment to Second Amended and Restated Loan and
Security Agreement and Modification to Other Agreements, executed by
Lender and Borrower (which document, among other things, modified the
Term Note to extend the maturity of the Term Loan until June 1, 2001),
(vii) that certain November 2000 Amendment to Second Amended and
Restated Loan and Security Agreement and Modification to Other
Agreements, executed by Lender and Borrower which document, among other
things, modified the Term Note to extend the maturity of the Term Loan
until October 1, 2001), and (viii) that certain April 2001 Amendment to
Second Amended and Restated Loan and Security Agreement and
Modification to Other Agreements, executed by Lender and Borrower
(which document, among other things, modified the Term Note to reflect
the increase of the Term Loan on the date of such document from
$8,547,730.06 to $9,002,730.06 and to extend the maturity of the Term
Loan until April 1, 2002)."
2.05 AMENDMENT TO SECTION 2.2 OF THE LOAN AGREEMENT. Effective as of
the date of execution of this Amendment, Section 2.2 of the Loan Agreement is
hereby amended and restated to read in its entirety as follows:
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"2.2 TERM LOAN. The parties hereto agree that (i) effective as
of April 1, 1994, Lender made to Sepco that certain term loan in the
original principal amount of $1,329,277.37, evidenced by that certain
Secured Promissory Note, dated April 1, 1994, in the original principal
amount of $1,329,277.37, executed by Sepco and payable to the order of
Lender, and (ii) as of the date of execution of the Third Amendment,
the unpaid principal amount of such term loan was $82,231.76, and that
in connection with the Third Amendment, at the request of Sepco, Lender
converted $4,917,768.24 of the principal amount of Revolving Credit
Loans made to Sepco by Lender outstanding on the date of execution of
the Third Amendment to a term loan, which term loan was combined and
consolidated with the outstanding principal amount of the term loan
made to Sepco on April 1, 1994, such that the combined term loan was in
the aggregate principal amount of $5,000,000, and (iii) as of the date
of execution of the Sixth Amendment, the unpaid principal amount of
such term loan was $4,887,000.00, and that in connection with the Sixth
Amendment, at the request of Sepco, Lender made on the date of
execution of the Sixth Amendment an additional $5,000,000 term loan to
Sepco, the proceeds of which were used to replace working capital used
by Sepco to acquire assets of Tri-Electric Supply, Ltd., and that such
additional $5,000,000 term loan was combined and consolidated with the
existing term loan, such that the combined and consolidated term loan
was in the aggregate principal amount of $9,887,000.00, and (iv) as of
the date of execution of the Seventh Amendment, the unpaid principal
amount of such term loan was $9,887,000.00, and that in connection with
the Seventh Amendment, at the request of Sepco, Lender on the date of
execution of the Seventh Amendment provided to Sepco an additional
$2,500,000 term loan, the proceeds of which were used to purchase the
real property legally described on Exhibit A to the Seventh Amendment,
and that such additional $2,500,000 term loan was combined and
consolidated with the outstanding principal amount of the existing term
loan such that the combined and consolidated term loan (after the full
principal amount of the new $2,500,000 term loan was funded) was in the
aggregate principal amount of $12,387,000. Sepco further agrees,
represents and warrants that as of the date of execution of the April
2001 Amendment, the unpaid principal amount of such term loan is
$8,547,730.06, and that there are no claims or offsets against, or
defenses or counterclaims to, payment of such amount to Lender. Sepco
further agrees, represents and warrants that it has requested that
Lender make on the date of execution of the April 2001 Amendment, an
additional $455,000 term loan to Sepco, and that such $455,000 term
loan be combined and consolidated with the existing term loan, such
that the combined and consolidated term loan shall be in the aggregate
principal amount of $9,002,730.06 (such combined and consolidated term
loan being referred to in this Agreement as the 'Term Loan'). Subject
to the terms and conditions of this Agreement, Lender agrees to make
the Term Loan to Sepco, and in connection therewith to advance on the
date of execution of the April 2001 Amendment an additional
$455,000.00. The Term Loan shall be repayable in accordance with the
terms of the Term Note, and shall be secured by the Collateral. The
parties hereto agree that the Term Loan represents a portion of the
'Sepco Obligations' referred to and defined in Section 1.5 of this
Agreement. If Sepco sells any of its Equipment or real Property, or if
any of the other Property owned by Sepco is taken by condemnation,
Sepco shall pay to Lender, unless otherwise agreed to by Lender, as and
when received by Sepco and as a mandatory prepayment of the Term Loan
(or, at Lender's option, such of the other Obligations as Lender may
elect), a sum equal to
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the proceeds received by Sepco from such sale or condemnation, less any
state or federal income tax directly attributable thereto."
2.06 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 "September 30, 2001" and
substituting therefor the date "March 31, 2002."
2.07 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 "October 1, 2001"
and substituting therefor the date "April 1, 2002."
2.08 AMENDMENT TO SECTION 9.2(I) OF THE LOAN AGREEMENT. Effective as of
the date of execution of this Amendment, Section 9.2(I) of the Loan Agreement is
amended and restated to read in its entirety as follows:
"(I) Permit Capital Expenditures made by DXP and its
Subsidiaries (including, without limitation, by way of capitalized
leases) to exceed in the aggregate $1,250,000 during the period
beginning April 1, 2001 and continuing through March 31, 2002."
2.09 AMENDMENT TO SECTION 9.3(F) OF THE LOAN AGREEMENT. Effective as of
the date of execution of this Amendment, Section 9.3(F) of the Loan Agreement,
is amended and restated to read in its entirety as follows:
"(F) Maintain, on a consolidated basis in accordance with
GAAP, EBITDA of DXP and its Subsidiaries for the month indicated below
in an amount not less than the amount indicated below:
Month Minimum EBITDA
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March, 2001 $ 555,000
April, 2001 $ 460,000
May, 2001 $ 500,000
June, 2001 $ 480,000
July, 2001 $ 590,000
August, 2001 $ 640,000
September, 2001 $ 540,000
October, 2001 $ 825,000
November, 2001 $ 725,000
December, 2001 $ 695,000
January, 2002 $ 695,000
February, 2002 $ 695,000"
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2.10 AMENDMENT TO PRINCIPAL BALANCE OF TERM NOTE. Effective as of the
date of execution of this Amendment, Borrower and Lender hereby amend the Term
Note such that (i) each reference in the Term Note to the dollar amount
"$12,387,000.00" is deleted and substituted therefor is the dollar amount
"$9,002,730.06," and (ii) the reference to the phrase "TWELVE MILLION THREE
HUNDRED EIGHTY-SEVEN THOUSAND AND NO/100 DOLLARS" is deleted and substituted
therefor is the phrase "NINE MILLION TWO THOUSAND SEVEN HUNDRED THIRTY AND
06/100 DOLLARS".
2.11 AMENDMENT TO PAYMENT TERMS IN THE TERM NOTE. Borrower and Lender
hereby agree that effective as of the date of execution of this Amendment, 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 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 THIRTY-THREE THOUSAND ONE HUNDRED
TWENTY AND NO/100 DOLLARS ($133,120.00) and each shall be due
and payable on May 1, 2001, and on the first day of each month
thereafter to and including the first day of March, 2002; and
(c) the entire unpaid principal balance hereof,
together with any and all other amounts due hereunder, shall
be due and payable on April 1, 2002."
2.12 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 April 1, 2002.
2.13 AMENDMENT TO PAYMENT TERMS IN THE ACQUISITION TERM LOANS NOTE.
Borrower and Lender hereby agree that effective as of the date of execution of
this Amendment, the last paragraph on page two of the Acquisition Term Loans
Note is amended as follows:
(a) The reference to the phrase "first day of September, 2001"
is hereby deleted and substituted therefor is the phrase "first day of
March, 2002."
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(b) The reference to the date "October 1, 2001" is hereby
deleted and substituted therefor is the date "April 1, 2002."
ARTICLE III
LIMITED WAIVER
3.01 Borrower has informed Lender (i) that Borrower violated several
times during calendar year 2000 and for the months of January, 2001 and
February, 2001 the financial covenant contained in Section 9.3(D) of the Loan
Agreement, and (ii) that Borrower violated for the month of January, 2001 and
for the month of February, 2001, the financial covenant contained in Section
9.3(F) of the Loan Agreement, and (iii) that an Event of Default currently
exists pursuant to Section 11.1(S) of the Loan Agreement due to the present
existence of "Events of Default," as such term is defined in that certain Loan
and Security Agreement, dated June 16, 1997, executed by Lender and DXP
Acquisition, Inc., d/b/a Strategic Acquisition, Inc., and Borrower has requested
that Lender waive (i) each such violation of Section 9.3(D) of the Loan
Agreement which occurred during calendar year 2000 and for the months of
January, 2001 and February, 2001, and (ii) each such violation of Section 9.3(F)
of the Loan Agreement for the months of January, 2001 and February, 2001, and
(iii) such Event of Default. 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 (i) each
of the above-described violations of Section 9.3(D) of the Loan Agreement which
occurred during calendar year 2000 and for the months of January, 2001 and
February, 2001, and (ii) each of the above-described violations of Section
9.3(F) of the Loan Agreement for the months of January, 2001 and February, 2001,
and (iii) the above-described Event of Default; provided, however, that the
waiver described in this Section 3.01 of this Amendment is strictly limited to
the Sections of the Loan Agreement and to the Event of Default described above
and to the specific occurrences described above. Except as otherwise
specifically provided for in this Amendment, nothing contained herein shall be
construed as a waiver by Lender of any covenant or provision of or Event of
Default under 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 Xxxxx X. Xxxxxx,
individually, Xxxxx X. Xxxxxx, Trustee for Xxxxx Xxxxx Xxxxxx,
Xxxxxxxx
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Xxxxx Xxxxxx and Xxxxxx Xxx Little 1988 Trusts, DXP
Enterprises, Inc. ("Parent"), DXP Acquisition, Inc., d/b/a
Strategic Acquisition, Inc. and Pelican State Supply Company,
Inc.;
(ii) Such extensions and modifications to existing
real estate lien documentation as shall be required by Lender,
in its sole discretion, duly executed by the relevant fee
title owner of the real property covered by such real estate
lien documentation; and
(iii) All other documents Lender may request with
respect to any matter relevant to this Amendment or the
transactions contemplated hereby;
(b) Evidence satisfactory to Lender, in its sole discretion,
that the existing loan by Lender to Xxxxx X. Xxxxxx has been paid off
in full;
(c) 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;
(d) 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
(e) 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 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
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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 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.
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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 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.
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IN WITNESS WHEREOF, this Amendment has been executed and is effective
as of the date first above-written.
"BORROWER"
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SEPCO INDUSTRIES, INC.
By: /s/ Xxx XxXxxxxxx
------------------
Name Xxx XxXxxxxxx
Title: Vice President
BAYOU PUMPS, INC.
By: /s/ Xxx XxXxxxxxx
------------------
Name Xxx XxXxxxxxx
Title: Vice President
AMERICAN MRO, INC.
By: /s/ Xxx XxXxxxxxx
------------------
Name Xxx XxXxxxxxx
Title: Vice President
"LENDER"
------
FLEET CAPITAL CORPORATION
By: /s/ H Xxxxxxx Xxxxx
--------------------
Name H Xxxxxxx Xxxxx
Title: Senior Vice President
