Exhibit 10.32
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT
AGREEMENT
This First Amendment to Amended
and Restated Credit Agreement (this “ Amendment
”) is made effective as of December 23, 2008 (the
“ Effective Date ”), by and among The
Teachers’ Retirement System of Alabama (“
Teachers’ Retirement System ”), The
Employees’ Retirement System of Alabama (“
Employees’ Retirement System ”), Judicial
Retirement Fund , PEIRAF-Deferred Compensation Plan ,
and Public Employees Individual Retirement Account Fund ,
(each, a “ Lender ” and collectively, the
“ Lenders ”), Teacher’s Retirement
System , as Agent for the Lenders (the “ Agent
”) and Bell Microproducts Inc. , a California
corporation (the “ Borrower ”).
R E C I T A L S
A. Borrower and the Lenders,
including the Agent, are parties to that certain Amended and
Restated Credit Agreement, dated as of June 30, 2008 (the
“ Credit Agreement ”). Unless otherwise defined
in this Amendment, capitalized terms used herein have the meanings
ascribed thereto in the Credit Agreement.
B. In accordance with the Credit
Agreement, Borrower has agreed to grant a security interest in its
Accounts to and for the benefit of the Lenders and the Agent, which
security interest shall be subordinate in all respects to the
security interests in such Accounts in favor of the holders of
Senior Indebtedness, on the terms and conditions set forth in this
Amendment and in a new Security Agreement, all as more particularly
described below.
NOW THEREFORE, in consideration of
the mutual covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties
hereto agree as follows:
Section 1. Certain
Acknowledgments .
(a) The Borrower hereby represents
and warrants to the Lenders and the Agents that, pursuant to that
certain Amended and Restated Loan and Security Agreement among the
Borrower, Bell Microproducts – Future Tech, Inc., Rorke Data,
Inc., Bell Microproducts Canada – Tenex Data ULC, Total Tec
Systems, Inc. and Forefront Graphics US Inc., as borrowers, Bell
Microproducts Canada Inc., and Bell Microproducts Mexico
Shareholder, LLC, as guarantors, Wachovia Capital Finance
Corporation (Western) (“ Wachovia Capital Finance
”), as Administrative Agent, Bank of America, N.A., as
Co-Agent (together with Wachovia Capital Finance, the “
Senior Bank Agents ”), and the other lenders named
therein, dated as of September 29, 2008 (the “ New
Senior Credit Agreement ”), the Borrower and the other
credit parties named therein have refinanced both the indebtedness
previously evidenced and governed by the Wachovia Bank Group Senior
ABL Agreement and the indebtedness previously evidenced and
governed by the Wachovia Bank Group Senior ABS Agreement, and that
the Wachovia Bank Group Senior ABS Agreement has been effectively
terminated.
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(b) Pursuant to the Credit
Agreement, a refinancing, refunding, renewal or extension of the
Senior Indebtedness referred to in Section 1(a) above will,
itself, constitute “Senior Indebtedness”, as that term
is defined in the Credit Agreement; provided, that any increase in
the principal amounts of any such Indebtedness incurred in
connection with any such extension, renewal, refunding or
refinancing will not constitute Senior Indebtedness unless, at the
time of such extension, renewal, refunding or refinancing, no Event
of Default or Default then exists and, on a pro forma basis
(assuming the full funding of such increased principal
Indebtedness), the financial covenants contained in Sections
6.2(a), 6.2(g) and 6.2(h) of the Credit Agreement are satisfied.
Accordingly, on or prior to the date hereof, Borrower has delivered
to the Agent the certificate described in Section 4(g) below,
evidencing the satisfaction of the foregoing financial covenants
(the “Amendment Certificate”).
(c) Each of the Lenders and Agent
hereby acknowledge that, based on the Amendment Certificate, the
indebtedness evidenced and governed by the New Senior Credit
Agreement constitutes “Senior Indebtedness”, as that
term is defined in the Credit Agreement.
Section 2. Grant of
Security Interest in Borrower’s Accounts .
Pursuant to Section 2.4(c) of
the Credit Agreement, the Borrower hereby agrees to grant a
security interest in and to all of the Borrower’s Accounts,
as additional Collateral for all of the Obligations, which security
interest shall be subordinate in all respects to the Senior
Indebtedness, but senior to any other claim with respect to such
Accounts. Accordingly, and in order to ratify and confirm the
previous grant of security interests in the Collateral owned by the
Borrower as security for the Obligations pursuant to the 2000
Security Agreement and the 2007 Security Agreement, the Borrower
hereby agrees to execute and deliver a Security Agreement in favor
of the Agent and the Lenders, in substantially the form set forth
as Exhibit A attached hereto (and with all attachments
thereto completed), which Security Agreement will be delivered
contemporaneously with the execution and delivery of this
Agreement.
Section 3. Conditions to
Effectiveness . The
effectiveness of the Lenders’ agreements contained in this
First Amendment are subject to the satisfaction of the following
conditions:
(a) Executed Documents . Each
of the Lenders and the Agent shall have received fully executed
copies of this Amendment and the Security Agreement referred to in
Section 2 hereof, each in form and substance satisfactory to
it and its counsel.
(b) Consent of Holders of Senior
Indebtedness . The Borrower shall have obtained, and provided
to the Lenders and the Agent (i) the consent of the holders of
the Senior Indebtedness outstanding under the New Senior Credit
Agreement (or, if authorized to do so, the Senior Agents) to the
amendment of the Credit Agreement in the manner contemplated
herein, and to the grant of the security interest in
Borrower’s Accounts pursuant to the Security Agreement
referred to in Section 2 hereof, and (ii) the waiver of
the prohibitions and restrictions applicable to this Amendment
contained in the New Senior Credit Agreement (including, without
limitation, the provisions of Section 9.9 thereof).
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(c) Payment of Fees and
Expenses . The Borrower shall have paid to the Agent the
reasonable legal fees and expenses of the Lenders’ and
Agent’s legal counsel incurred in connection with this
Amendment.
(d) Attachments to
Securi
