Contract
18 June
2009
To: Bell
Microproducts Limited
Fountain
Court,
Xxx
Xxxx,
Chessington,
Surrey
KT9 1SJ
For the
attention of Xxxx Xxx/Xxxxx Xxxxxxx
Dear
Sirs,
Syndicated
Credit Agreement dated 2 December 2002 (as amended and restated on 21 May 2008,
the “Credit Agreement”)
Amendment
and Waiver
We refer
to the Credit Agreement. Words and expressions defined in the Credit
Agreement shall have the same meanings when used in this letter. We
further refer to a proposal for an intercompany loan restructuring comprising
the prepayment by BMUK of up to €10,000,000 of financial indebtedness owed by
BMUK to BMEBV (the “Prepayment”), and the
investment by BMEBV of the amount of such prepayment by way of subscription for
new equity shares to be issued by Bell Microproducts GmbH (the “Investment”), and the payment
by Bell Microproducts GmbH to BMUK of such amount in discharge and/or advance
payment of its obligations in respect of the intercompany trading account
between those entities (the “Trade Payment”), and to the
amendments and waivers in relation to the Credit Agreement which have been
requested in relation to the Prepayment, the Investment, the Trade Payment and
certain other matters.
Pursuant
to clause 30.1 (Amendments) of the Credit
Agreement, we, as the Agent, having been authorised by all of the Lenders to do
so in writing, hereby agree as follows:
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(i)
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that
clause 1.1 (Definitions) of the
Credit Agreement shall be amended as
follows:
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(a)
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the
definitions of “Reference Rate” and “Reference Rate Revolving Loan” shall
be deleted;
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(b)
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the
following new definitions shall be added immediately following the
definition of “Aggregate Exposure”:
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“Alternative Rate: at any
time during a calendar month, in relation to any Loan or unpaid sum
denominated in sterling or any Foreign Currency (as the case may be) on
which interest is to be calculated by reference to the Alternative
Rate:
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(i)
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the
applicable Screen Rate; or
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(ii)
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(if
no Screen Rate is available for the currency of that Loan or unpaid sum)
the arithmetic mean of the rates (rounded up to 4 decimal places) as
supplied to the Agent at its request quoted by the Reference Banks to
leading banks in the London Interbank
Market,
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for a
period of 30 days, at or about 11.00 a.m. in London on the first business day of
that calendar month, for sterling or such Foreign Currency;
Alternative Rate Revolving
Loan: a revolving loan made or to be made by the Lenders in
relation to which interest thereon is to be calculated by reference to the
Alternative Rate;”
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(ii)
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except
where deleted in accordance with the terms of this letter, each occurrence
of the term “Reference Rate Revolving Loan” in the Credit Agreement shall
be replaced with the term “Alternative Rate Revolving Loan”, and each
occurrence of the term “Reference Rate” in the Credit Agreement shall be
replaced with “Alternative Rate for the month during which such interest
accrues”;
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(iii)
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that
clause 15.2.1 (Financial
Statements) of the Credit Agreement be amended by deleting the
words “within 120 days after the end of each Financial Year” and
substituting therefor “within 180 days after the end of each Financial
Year”;
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(iv)
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that
clause 15.2.1 (Financial
Statements) of the Credit Agreement shall be waived in relation to
the Financial Year ending 31 December 2009, provided that the Financial
Statements, audited statutory accounts, consolidation and any other
document referred to in that clause in relation to that Financial Year are
delivered to the Agent in sufficient copies for each of the Lenders on or
before 30 September 2009 (and it is agreed that failure to deliver the
same on or before that date shall constitute an immediate Event of
Default);
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(v)
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that
clause 16.3.6 (Prepayment) of the
Credit Agreement shall be waived to the extent necessary to permit the
Prepayment; and
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(vi)
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that
clauses 16.3.8 (c) (Transactions with
Affiliates) and 16.3.12 (Restricted Investments)
of the Credit Agreement shall be waived to the extent necessary to permit
the Investment.
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The
amendments and waivers set out in the preceding paragraphs are given subject to
the following conditions:
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(a)
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that,
by accepting the terms of this letter, each Obligor is deemed to represent
and warrant to each of the other parties to the Credit Agreement that the
representations and warranties in clauses 14.1 and 14.2 of the Credit
Agreement are true and complied with at the date of such
acceptance;
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(b)
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that
BMUK shall pay to the Agent a fee of £12,500 for the account of the
Lenders on the date of its acceptance of the terms of this letter (the
“Fee”);
and
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(c)
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that
BMUK shall pay to the Agent the amount of any fees, costs or expenses
incurred in connection with this letter and the transactions contemplated
hereby promptly on demand.
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Save to
the extent specifically amended or waived by this letter the Credit Agreement
shall remain in full force and effect.
This
letter is a Finance Document.
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V.A.T.
Registration no. GB 625 3134 66.
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Registered
branch in England at 0 Xxxxxx Xxxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx no.
FC 2984
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Bank
of America, N.A.
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London
Telex: 888412/0
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0
Xxxxxx Xxxxxx, Xxxxxx X00 0XX,
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Incorporated
in U.S.A. with Limited Liability
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United
Kingdom
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Chartered
under U.S: law by the office of the Comptroller of the Currency, Charter
no. 13044
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Head
office: 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx,
X.X.X
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Tel:
x00 (0)00 0000 0000
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Regulated
by the Financial Services Authority
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Fax:
x00 (0)00 0000 0000
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(22769330.02)
This
letter, which is intended to take effect as a deed, shall be governed by English
law.
Please
acknowledge your acceptance of the terms of this letter by executing and
returning (duly executed by each other Obligor) the enclosed copy of it,
together with the enclosure referred to therein, to the undersigned, whereupon
the amendment contained in this letter shall take effect, unless the Agent has
actual notice that any of the representations referred to above is incorrect at
the time of such acceptance, or that the Fee has not been paid, or that an Event
of Default has occurred, in either of which events the amendment contained in
this letter shall not have effect.
Yours
faithfully
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EXECUTED AS A DEED
by
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)
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/s/ Xxx Xxxxxxx
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BANK
OF AMERICA, NATIONAL
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)
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Xxx
Xxxxxxx
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ASSOCIATION acting by
its duly
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)
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Client
Manager
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authorised
signatory in the presence of:
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)
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Witness
signature:
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/s/ Xxxx Xxxxxx
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Witness
name:
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Xxxx Xxxxxx
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Witness
address:
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00
Xxxxxx Xx.
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London,
E14 5AQ
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Witness
occupation:
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Analyst
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(22769330.02)
To: Bank
of America, N.A.,
0 Xxxxxx
Xxxxxx,
London
E14 5AQ
Attention
Business Capital, Portfolio Management
29 June
2009
Dear
Sirs,
Syndicated
Credit Agreement dated 2 December 2002 (as amended and restated on 21 May 2008,
the “Credit Agreement”)
We refer
to your letter of 18 June 2009 of which the above is a copy and confirm our
acceptance of its terms. In particular we confirm that, by accepting the terms
of your letter, each Obligor is deemed to represent and warrant to each of the
other parties to the Credit Agreement that the representations and warranties in
clauses 14.1 and 14.2 of the Credit Agreement are true and complied with at the
date of such acceptance.
Enclosed
herewith is a true, complete and up to date copy of a resolution of the board of
each Obligor, approving the terms and the execution of this letter and
authorising the signatories who have executed this letter to do so on behalf of
that Xxxxxxx.
Yours
faithfully
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EXECUTED AS A DEED by
XXXX
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)
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MICROPRODUCTS
LIMITED
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)
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on
being signed by Xxxx Xxx
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)
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a
Director
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)
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/s/ Xxxxxxxx Xxx
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in
the presence of:
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(Director)
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Witness
signature:
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/s/
Xxxxx Xxxxxxxx
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Witness
name:
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X.
Xxxxxxxx
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Witness
address:
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00
Xxxxxxxxxx Xxxx, XX00 0XX, XX
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Witness
occupation:
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Treasurer
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EXECUTED AS A DEED by
XXXX
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)
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MICROPRODUCTS
EUROPE EXPORT LIMITED
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)
)
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on
being signed by Xxxx Xxx
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)
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a
Director
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)
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/s/ Xxxxxxxx Xxx
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in
the presence of:
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(Director)
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Witness
signature:
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/s/
Xxxxx Xxxxxxxx
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Witness
name:
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X.
Xxxxxxxx
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Witness
address:
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00
Xxxxxxxxxx Xxxx, XX00 0XX, XX
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Witness
occupation:
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Treasurer
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EXECUTED AS A DEED by
XXXX
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)
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MICROPRODUCTS
(US) LIMITED
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)
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on
being signed by Xxxx Xxx
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)
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a
Director
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/s/ Xxxxxxxx Xxx
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in
the presence of:
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(Director)
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Witness
signature
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/s/
Xxxxx Xxxxxxxx
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Witness
name:
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X.
Xxxxxxxx
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Witness
address:
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00
Xxxxxxxxxx
Xxxx,
XX00 0XX, XX
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Witness
occupation:
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Treasurer
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SIGNED AS A DEED by
XXXX
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)
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MICROPRODUCTS
EUROPE B.V.
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)
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acting
by Xxxx Xxx
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)
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Director
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)
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/s/ Xxxxxxxx Xxx
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(Director)
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SIGNED AS A DEED by
XXXX
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)
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MICROPRODUCTS
S.A.R.L.
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)
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acting
by Xxxx Xxx
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)
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Gerant
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)
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/s/ Xxxxxxxx Xxx
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(Gerant)
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SIGNED AS A DEED by
XXXX
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)
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MICROPRODUCTS
BVBA
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)
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acting
by Xxxx Xxx
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)
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Director
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)
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/s/ Xxxxxxxx
Xxx
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(Director)
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SIGNED AS A DEED by
XXXX
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)
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MICROPRODUCTS
S.R.L..
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)
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acting
by Xxxx Xxx
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)
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Director
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)
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/s/ Xxxxxxxx Xxx
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(Director)
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SIGNED AS A DEED by
XXXX
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)
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MICROPRODUCTS
EUROPE (HOLDINGS) B.V.
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)
)
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acting
by Xxxx Xxx
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)
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Director
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)
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/s/ Xxxxxxxx Xxx
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(Director)
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SIGNED AS A DEED by
BM
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)
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EUROPE
PARTNERS C.V.
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)
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acting
by its general partner
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)
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Bell
Microproducts Europe Inc.
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)
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/s/ Xxxxxx Xxxx
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(Officer)
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