EXHIBIT 10.5
EXECUTION VERSION
CONSENT AND SIXTH AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS CONSENT AND SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT (this "Consent and Amendment"), dated as of May 15, 2000, is entered
into by and among:
(1) BELL MICROPRODUCTS INC., a California corporation
("Borrower");
(2) Each of the financial institutions listed in Schedule I to
the Restated Credit Agreement referred to in Recital A below (the
"Banks");
(3) CALIFORNIA BANK & TRUST, a California banking corporation,
as administrative agent for the Banks (in such capacity,
"Administrative Agent"); and
(4) UNION BANK OF CALIFORNIA, N.A., a national banking
association ("UBOC"), as collateral agent thereunder (in such capacity,
"Collateral Agent").
RECITALS
A. Borrower, the Banks, Administrative Agent and Collateral Agent are
parties to a Third Amended and Restated Credit Agreement dated as of November
12, 1998, as amended by (i) that certain First Amendment to Third Amended and
Restated Credit Agreement dated as of May 13, 1999, (ii) that certain Second
Amendment to Third Amended and Restated Credit Agreement dated as of July 21,
1999, (iii) that certain Waiver and Third Amendment to Third Amended and
Restated Credit Agreement dated as of October 15, 1999, (iv) that certain Fourth
Amendment to Third Amended and Restated Credit Agreement dated as of December 8,
1999 and (v) that certain Fifth Amendment to Third Amended and Restated Credit
Agreement dated as of December 31, 1999 (as amended, the "Restated Credit
Agreement").
B. Borrower has recently informed Administrative Agent, Collateral
Agent and the Banks that (i) it intends to form a new, wholly-owned Subsidiary
that will engage in a certain merger transaction as more specifically described
in subparagraph 2(a) below and (ii) it intends to acquire all or substantially
all of the assets of another corporation in an asset acquisition transaction as
more specifically described in subparagraph 2(b) below. Because both the merger
transaction and the asset acquisition transaction would violate certain
covenants of Borrower contained in the Restated Credit Agreement, Borrower has
requested the Banks, Administrative Agent and Collateral Agent to waive
compliance with such covenants in connection with such transactions.
C. In addition, Borrower has requested Administrative Agent, Collateral
Agent and the Banks to amend the Restated Credit Agreement in certain respects.
<PAGE>
D. The Banks, Administrative Agent and Collateral Agent are willing so
to consent to such transactions and amend the Restated Credit Agreement upon the
terms and subject to the conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrower, the Banks, Administrative Agent and Collateral Agent
hereby agree as follows:
1. Definitions, Interpretation. All capitalized terms defined above and
elsewhere in this Consent and Amendment shall be used herein as so defined.
Unless otherwise defined herein, all other capitalized terms used herein shall
have the respective meanings given to those terms in the Restated Credit
Agreement, as amended by this Consent and Amendment. The rules of construction
set forth in Section I of the Restated Credit Agreement shall, to the extent not
inconsistent with the terms of this Consent and Amendment, apply to this Consent
and Amendment and are hereby incorporated by reference.
2. Request for Consents to Merger and Acquisition.
(a) Pursuant to Subparagraph 5.02(d) of the Restated Credit Agreement,
Borrower has agreed, unless Required Banks shall otherwise consent in writing,
that neither Borrower nor any of its Subsidiaries shall consolidate with or
merge into any other Person or permit any other Person to merge into it. In
addition, pursuant to Subparagraph 5.02(e) of the Restated Credit Agreement,
Borrower has agreed, unless Required Banks shall otherwise consent in writing,
that neither Borrower nor any of its Subsidiaries shall make any Investment
except for Permitted Investments. Notwithstanding the foregoing prohibitions,
Borrower has recently informed Administrative Agent, Collateral Agent and the
Banks that it has entered into the Agreement and Plan of Merger (the "Merger
Agreement") dated as of May 3, 2000 by and among the Borrower, RDI Acquisition
Corp., a Minnesota corporation ("Merger Subsidiary"), and Rorke Data,
Incorporated, a Minnesota corporation ("Rorke Data"), pursuant to which Merger
Subsidiary will merge with and into Rorke Data with Merger Subsidiary as the
surviving corporation (such merger transaction, the "Rorke Merger Transaction").
Rorke Data owns 204 shares of the outstanding common stock of Rorke Data Europe
Holding B.V. ("Rorke Europe"), and prior to or simultaneously with the closing
of the Rorke Merger Transaction, Borrower shall purchase the remaining 196
shares of the outstanding stock of Rorke Europe. Borrower has represented to
Administrative Agent, Collateral Agent and the Banks that the consideration to
be paid by Borrower in connection with the Rorke Merger Transaction will not
exceed the following: (i) $1,703,060.12; (ii) $804,500, which amount is subject
to adjustment as described in Section 1.5 of the Merger Agreement; (iii) an
aggregate number of shares of common stock of the Borrower equivalent in value
to $2,507,536, with such valuation determined as provided in Exhibit C to the
Merger Agreement; (iv) $1,104,500 for the purchase of the remaining 196 shares
of the outstanding stock of Rorke Europe; and (v) $195,500 for the purchase of
the remaining 196 shares of the outstanding stock of Rorke Europe, which amount
is subject to adjustment as described in Section 1.5 of the Merger Agreement.
Because the Rorke Merger Transaction is prohibited pursuant to Subparagraph
5.02(d) of the Restated Credit Agreement and Subparagraph 5.02(e) of the
Restated Credit Agreement unless, in each case, Required Banks otherwise consent
in writing, Borrower has approached Administrative Agent, Collateral Agent and
the Banks and requested such consent.
<PAGE>
(b) Pursuant to Subparagraph 5.02(d) of the Restated Credit Agreement,
Borrower has agreed, unless Required Banks shall otherwise consent in writing,
that neither Borrower nor any of its Subsidiaries shall acquire all or
substantially all of the assets of any other Person. Notwithstanding the
foregoing prohibition, Borrower has recently informed Administrative Agent,
Collateral Agent and the Banks that it has entered into the Asset Purchase
Agreement (the "Asset Purchase Agreement") dated as of April 26, 2000 by and
between Borrower and Streamlogic Corporation, a Delaware corporation ("Seller"),
pursuant to which Borrower has agreed to acquire all or substantially all of the
assets of a division of the Seller known as Hammer Storage Solutions (such asset
acquisition, the "Streamlogic Acquisition Transaction"). Borrower has
represented to Administrative Agent, Collateral Agent and the Banks that the
purchase price to be paid by Borrower in connection with the Streamlogic
Acquisition Transaction will not exceed $450,000. Because the Streamlogic
Acquisition Transaction is prohibited by Subparagraph 5.02(d) of the Restated
Credit Agreement unless Required Banks otherwise consent in writing, Borrower
has recently approached Administrative Agent, Collateral Agent and the Banks and
requested such consent.
3. Consents. (a) Subject to the satisfaction of the conditions set
forth in paragraph 5 below, the undersigned Banks hereby consent to the Rorke
Merger Transaction; provided that:
(i) The aggregate consideration paid by Borrower in connection
with such merger does not exceed the amount specified in Paragraph 2
above, as adjusted pursuant to the Merger Agreement;
(ii) Borrower provides Administrative Agent with written
notice of the consummation of the Rorke Merger Transaction on the date
such transaction closes;
(iii) Prior to the closing of the Rorke Merger Transaction,
Borrower shall have delivered to Administrative Agent (with sufficient
copies for each Bank) a true and correct copy of the Merger Agreement,
duly executed by the parties thereto, together with all exhibits and
schedules thereto in effect as of the date thereof; and
(iv) The consummation of the Rorke Merger Transaction does not
violate any provision of the Restated Credit Agreement or any of the
other Credit Documents or will result in a violation of any such
provision, other than Subparagraph 5.02(d) and Subparagraph 5.02(e).
(b) Subject to the satisfaction of the conditions set forth in
paragraph 5 below, the undersigned Banks hereby consent to the Streamlogic
Acquisition Transaction; provided that:
(i) The aggregate consideration paid by Borrower in connection
with such acquisition does not exceed the amount specified in
subparagraph 2(b) above;
<PAGE>
(ii) Borrower provides Administrative Agent with written
notice of the consummation of the Streamlogic Acquisition Transaction
on the date such transaction closes;
(iii) Prior to the closing of the Streamlogic Acquisition
Transaction, Borrower shall have delivered to Administrative Agent
(with sufficient copies for each Bank) a true and correct copy of the
Asset Purchase Agreement, duly executed by the parties thereto,
together with all exhibits and schedules thereto in effect as of the
date thereof; and
(iv) The consummation of the Streamlogic Acquisition
Transaction does not violate any provision of the Restated Credit
Agreement or any of the other Credit Documents or will result in a
violation of any such provision, other than Subparagraph 5.02(d).
4. Amendments to Restated Credit Agreement. Subject to the satisfaction
of the conditions set forth in paragraph 5 below, the Restated Credit Agreement
is hereby amended as follows:
(a) Subparagraph 2.01(f) of the Restated Credit Agreement is
hereby amended to read in its entirety as follows:
(f) Scheduled Revolving Loan Payments. Borrower
shall repay to each Bank on the Revolving Loan Maturity
Date the unpaid principal amount of each Revolving Loan
made by such Bank. Borrower shall pay accrued interest on
the unpaid principal amount of each Revolving Loan (A) in
the case of a Revolving Prime Rate Loan, on the last
Business Day in each month, (B) in the case of a Revolving
LIBOR Loan, on the last day of each Interest Period
therefor (and, if any such Interest Period is longer than
three (3) months, every three (3) months); and (C) in the
case of all Revolving Loans, upon prepayment (to the
extent thereof) and at maturity.
(b) Clause (iv) of Subparagraph 5.02(m) of the Restated Credit
Agreement is hereby amended to read in its entirety as follows:
(iv) Its Leverage Ratio to be greater than 3.50
to 1.00 for any fiscal quarter ending prior to the Sixth
Amendment Effective Date, its Leverage Ratio to be greater
than 4.00 to 1.00 for any fiscal quarter ending on or
after the Sixth Amendment Effective Date and prior to the
fiscal quarter ending on December 31, 2000, and its
Leverage Ratio to be greater than 3.75 to 1.00 for any
fiscal quarter ending thereafter;
(c) Schedule II of the Restated Credit Agreement is hereby
amended to read in its entirety as set forth on Appendix 1 hereto.
(d) Schedule 1.01 of the Restated Credit Agreement is hereby
amended by adding thereto, in the appropriate alphabetical order, the
following definitions:
"RDI" shall mean Rorke Data, Inc., a Minnesota corporation.
<PAGE>
"Sixth Amendment Effective Date" shall mean May 15, 2000.
(e) Schedule 1.01 of the Restated Credit Agreement is hereby
amended by changing the definition of "Eligible Accounts" set forth
therein to read in its entirety as follows:
"Eligible Accounts" shall mean, with respect to Borrower,
the aggregate net amount of all accounts (as defined in the
California Uniform Commercial Code) of Borrower, Bell-Tenex and
RDI, except, to the extent not already deducted, the following:
(a) Any account which does not arise from the
sale or lease of goods or services rendered to the account
debtor thereon in the ordinary course of Borrower's or the
Canadian Subsidiaries' business, or which arises from a
sale, lease or service which has not been fully performed
by Borrower, Bell-Tenex or RDI;
(b) Any account or portion thereof to the extent
the same is subject to any right of discount, credit,
allowance, rescission, setoff, claim or defense or which
is otherwise not valid and enforceable against the account
debtor thereon;
(c) Any account which is not subject to a first
priority perfected security interest in favor of
Collateral Agent for the benefit of the Agents and the
Banks;
(d) Any account which is not owned by Borrower,
Bell-Tenex or RDI free and clear of all Liens, rights and
interests of all other Persons except for Permitted Liens;
(e) Any account which is unpaid more than ninety
(90) days after the invoice date therefor;
(f) Any account arising from a consignment by
Borrower, Bell-Tenex or RDI as consignee or a COD
shipment;
(g) Any account payable by (i) the United States
government or any department, agency or other subdivision
thereof (except to the extent Borrower complies with the
Federal Assignment of Claims Act of 1940, as amended),
(ii) a Person located in any jurisdiction outside the
United States or Canada (excluding the provinces of
Newfoundland, Nova Scotia, Prince Edward Island, New
Brunswick, Nunavut, Manitoba, Saskatchewan, Alberta and
the Yukon Territory), except to the extent secured by a
letter of credit acceptable to Collateral Agent, or (iii)
an Affiliate of Borrower;
(h) Any account payable by an account debtor (i)
which is the subject of any bankruptcy, insolvency,
liquidation or similar proceeding, (ii) which has made an
assignment for the benefit of its creditors, (iii) for
which a receiver has been appointed or (iv) which has
admitted in writing its inability to pay its debts as such
debts become due;
<PAGE>
(i) All accounts payable by an account debtor
which has failed to pay twenty percent (20%) or more of
its total accounts payable owed to Borrower, RDI and/or
Bell-Tenex (as applicable) within ninety (90) days of
their invoice date;
(j) Any account payable by an account debtor in
which the total accounts payable from such account debtor
exceeds twenty five percent (25%) of the total amount of
all Eligible Accounts, to the extent of such excess
(except as approved from time to time by Collateral
Agent); and
(k) Any other account which Collateral Agent
reasonably determines is unlikely to be paid in full
within ninety (90) days after the invoice date.
(As used in clauses (a)-(k) of this definition, the term
"account" when used in the singular form shall mean an
account arising from a single invoice.)
(f) Schedule 1.01 of the Restated Credit Agreement is hereby
amended by changing the definition of "Eligible Inventory" set forth
therein to read in its entirety as follows:
"Eligible Inventory" shall mean, with respect to Borrower,
the net book value of all inventory (as defined in the California
Uniform Commercial Code) of Borrower, RDI and Bell-Tenex, except
the following:
(a) Any inventory which is not held by or on
behalf of Borrower, RDI or Bell-Tenex for sale or lease in
the ordinary course of its business;
(b) Any inventory consisting of work-in-process;
(c) Any inventory which is not subject to a first
priority perfected security interest in favor of
Collateral Agent for the benefit of the Agents and the
Banks;
(d) Any inventory located in any jurisdiction
other than the United States or Canada (excluding the
provinces of Newfoundland, Nova Scotia, Prince Edward
Island, New Brunswick, Manitoba, Saskatchewan, Alberta and
Yukon Territory);
(e) Any inventory which is not owned by Borrower,
RDI or Bell-Tenex free and clear of all Liens, rights and
interests of all other Persons except for Permitted Liens;
(f) Any inventory which is obsolete, unsalable or
damaged;
<PAGE>
(g) Any inventory which has been consigned by
Borrower, RDI or Bell-Tenex (except for such inventory on
consignment approved from time to time by Collateral
Agent);
(h) The portion of any inventory shown on the
books of Borrower, RDI or Bell-Tenex representing any
purchase price discount earned by Borrower, RDI or
Bell-Tenex; and
(i) Any other inventory which Collateral Agent
reasonably determines is unlikely to be sold at or above
its net book value.
(g) Schedule 4.01(q) of the Restated Credit Agreement is
hereby amended to read in its entirety as set forth on Appendix 2
hereto.
5. Representations and Warranties. Borrower hereby represents and
warrants to Administrative Agent, Collateral Agent and the Banks that, on the
date of this Consent and Amendment and after giving effect to the consents set
forth in paragraph 3 above and the amendments set forth in paragraph 4 above on
the Sixth Amendment Effective Date (as defined below), the following are and
shall be true and correct on each such date:
(a) The representations and warranties set forth in Paragraph
4.01 of the Restated Credit Agreement are true and correct in all
material respects;
(b) No Event of Default or Default has occurred and is
continuing; and
(c) Each of the Credit Documents is in full force and effect.
6. Effective Date. The consents granted pursuant to paragraph 3 above
and the amendments to the Restated Credit Agreement effected by paragraph 4
above shall become effective on May 15, 2000 (the "Sixth Amendment Effective
Date"), subject to receipt by the Banks, Administrative Agent and Collateral
Agent, as applicable, on or prior to the Sixth Amendment Effective Date (or, in
the case of subparagraph 6(e), on or prior to May 31, 2000) of the following,
each in form and substance satisfactory to the Banks, Administrative Agent,
Collateral Agent and their respective counsel, as applicable:
(a) This Consent and Amendment duly executed by Borrower, each
Bank, Administrative Agent and Collateral Agent;
A letter in the form of Appendix 3 hereto appropriately completed,
dated the Sixth Amendment Effective Date and duly executed by each Guarantor;
An amendment fee of $30,000 to be shared equally among the Banks;
A favorable written opinion of Fredrikson & Byron, P.A., counsel to
Borrower, dated the Sixth Amendment Effective Date, addressed to Administrative
Agent and the Banks and covering such legal matters with respect to Rorke Date,
Inc. as Administrative Agent may reasonably request and otherwise in form and
substance satisfactory to Administrative Agent;
<PAGE>
A favorable written opinion of Fredrikson & Byron, P.A., counsel to
Borrower, dated on or prior to May 31, 2000, addressed to Administrative Agent
and the Banks and covering such legal matters with respect to the Borrower as
Administrative Agent may reasonably request and otherwise in form and substance
satisfactory to Administrative Agent;
(b) A Pledge Agreement substantially in the form of Appendix
4, duly executed by RDI (the "RDI Pledge Agreement").
(c) A Guaranty substantially in the form of Appendix 5, duly
executed by each of RDI (the "RDI Guaranty") and Rorke Europe (the
"Rorke Europe Guaranty");
(d) A Security Agreement substantially in the form of Appendix
6, duly executed by RDI (the "RDI Security Agreement");
(e) The corporate documents, security documents and other
items specified on Appendix 7;
(i) Such other evidence as Administrative Agent, Collateral
Agent or any Bank may reasonably request to establish the accuracy and
completeness of the representations and warranties and the compliance
with the terms and conditions contained in this Consent and Amendment.
The delivery of the opinion referenced in subparagraph 6(e) on
or prior to May 31, 2000 shall constitute a condition subsequent to the
effectiveness of this Amendment.
7. Effect of this Consent and Amendment. On and after the Sixth
Amendment Effective Date, each reference in the Restated Credit Agreement and
the other Credit Documents to the Restated Credit Agreement shall mean the
Restated Credit Agreement as amended hereby. Except as specifically consented to
or amended above, (a) the Restated Credit Agreement and the other Credit
Documents shall remain in full force and effect and are hereby ratified and
confirmed and (b) the execution, delivery and effectiveness of this Consent and
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power, or remedy of the Banks, Administrative Agent or Collateral
Agent, nor constitute a waiver of any provision of the Restated Credit Agreement
or any other Credit Document.
8. Miscellaneous.
(a) Counterparts. This Consent and Amendment may be executed
in any number of identical counterparts, any set of which signed by all
the parties hereto shall be deemed to constitute a complete, executed
original for all purposes.
(b) Headings. Headings in this Consent and Amendment are for
convenience of reference only and are not part of the substance hereof.
(c) Governing Law. This Consent and Amendment shall be
governed by and construed in accordance with the laws of the State of
California without reference to conflicts of law rules.
<PAGE>
IN WITNESS WHEREOF, Borrower, Administrative Agent, Collateral Agent
and the Banks have caused this Consent and Amendment to be executed as of the
day and year first above written.
BORROWER: BELL MICROPRODUCTS INC.
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
ADMINISTRATIVE AGENT: CALIFORNIA BANK & TRUST,
As Administrative Agent
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
COLLATERAL AGENT: UNION BANK OF CALIFORNIA, N.A.,
As Collateral Agent
By:__________________________________
Name:
Title:
<PAGE>
BANKS: CALIFORNIA BANK& TRUST,
As a Bank
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
As a Bank
By:__________________________________
Name:
Title:
SANWA BANK CALIFORNIA,
As a Bank
By:__________________________________
Name:
Title:
COMERICA BANK - CALIFORNIA,
As a Bank
By:__________________________________
Name:
Title:
<PAGE>
U.S. BANK NATIONAL ASSOCIATION,
As a Bank
By:__________________________________
Name:
Title:
IBM CREDIT CORPORATION,
As a Bank
By:__________________________________
Name:
Title:
<PAGE>
APPENDIX 1
SCHEDULE II
PRICING GRID
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5 LEVEL 6 LEVEL 7
PERIOD PERIOD PERIOD PERIOD PERIOD PERIOD PERIOD
APPLICABLE
MARGINS: 1.45% 1.65% 1.85% 1.05% 2.25% 2.50% 2.75%
EXPLANATION
1. The Applicable Margin for each Revolving LIBOR Loan will be set for
each Pricing Period and will vary depending upon whether such period is
a Level 1 Period, a Level 2 Period, a Level 3 Period, a Level 4 Period,
a Level 5 Period, a Level 6 Period or a Level 7 Period.
2. The first Pricing Period, which commences on the November 12, 1998 and
ends on February 28, 1999, will be a Level 3 Period.
3. Each Pricing Period thereafter will be a Level 1 Period, a Level 2
Period, a Level 3 Period, a Level 4 Period, a Level 5 Period, a Level 6
Period or a Level 7 Period depending upon Borrower's Leverage Ratio (as
calculated pursuant to the definition of "Leverage Ratio" set forth in
Schedule 1.01) for the most recent fiscal quarter period ending prior
to the first day of such Pricing Period as follows:
(a) If, during any Pricing Period, Borrower's Leverage Ratio is
less than 2.00 to 1.00, Borrower's pricing will be a Level 1
Period.
(b) If, during any Pricing Period, Borrower's Leverage Ratio is
greater than or equal to 2.00 to 1.00 but less than or equal
to 2.50 to 1.00, Borrower's pricing will be a Level 2 Period.
(c) If, during any Pricing Period, Borrower's Leverage Ratio is
greater than 2.50 to 1.00 but less than or equal to 3.00 to
1.00, Borrower's pricing will be a Level 3 Period.
(d) If, during any Pricing Period, Borrower's Leverage Ratio is
greater than 3.00 to 1.00 but less than or equal to 3.25 to
1.00, Borrower's pricing will be a Level 4 Period.
(e) If, during any Pricing Period, Borrower's Leverage Ratio is
greater than 3.25 to 1.00 but less than or equal to 3.50 to
1.00, Borrower's pricing will be a Level 5 Period.
(f) If, during any Pricing Period, Borrower's Leverage Ratio is
greater than 3.50 to 1.00 but less than or equal to 3.75 to
1.00, Borrower's pricing will be a Level 6 Period.
(e) If, during any Pricing Period, Borrower's Leverage Ratio is
greater than 3.75 to 1.00, Borrower's pricing will be a Level
7 Period.
<PAGE>
APPENDIX 2
SCHEDULE 4.01(q)
SUBSIDIARIES
Jurisdiction Classes
of of Outstanding Percent
Name Incorporation Stock Shares Owned
Bell Microproducts Canada, Inc. California Common 100 100%
Bell Microproducts-Future Tech,
Inc. California Common 1,000 100%
Rorke Data Europe Holding B.V. Netherlands Common 400 100%
Rorke Data, Inc. Minnesota Common 1,000 100%
Rorke Data Asset Management Co,
Inc. Minnesota Common 1,000 100%
Bell Microproducts Canada -
Tenex Data ULC Nova Scotia, Common [____] 100%
Canada
<PAGE>
APPENDIX 3
FORM OF GUARANTOR CONSENT LETTER
May [__], 2000
TO: ADMINISTRATIVE AGENT,
As Administrative Agent for the Banks
and the Agents under the
Restated Credit Agreement referred to below
1. Reference is made to the following:
(a) The Third Amended and Restated Credit Agreement dated
as of November 12, 1998, among Borrower, the Banks,
Administrative Agent and Collateral Agent, as amended
by that certain First Amendment to Third Amended and
Restated Credit Agreement dated as of May 13, 1999,
that certain Second Amendment to Third Amended and
Restated Credit Agreement dated as of July 21, 1999,
that certain Waiver and Third Amendment to Third
Amended and Restated Credit Agreement dated as of
October 15, 1999, that certain Fourth Amendment to
Third Amended and Restated Credit Agreement dated as
of December 8, 1999 and that certain Fifth Amendment
to Third Amended and Restated Credit Agreement dated
as of December 31, 1999 (as amended, the "Restated
Credit Agreement");
(b) [The Bell Canada Guaranty, dated as of November 12,
1998 (the " Bell Canada Guaranty"),] [The Bell-Tenex
Guaranty, dated as of November 20, 1998 (the
"Bell-Tenex Guaranty"),] [The Bell-Future Tech
Guaranty, dated as of November ____, 1999 (the
"Bell-Future Tech Guaranty"),] executed by the
undersigned ("Guarantor") in favor of the Banks and
Collateral Agent; and
(c) The Consent and Sixth Amendment to Third Amended and
Restated Credit Agreement, dated as of May [___],
2000, among Borrower, the Banks, Administrative Agent
and Collateral Agent (the "Consent and Sixth
Amendment");
2. Guarantor hereby confirms that it is a wholly-owned subsidiary
of [Bell Microproducts Inc., a California corporation] [Bell
Microproducts Canada Inc., a California corporation ("Bell
Canada") and that Bell Canada is a wholly-owned subsidiary of
Bell Microproducts Inc., a California corporation].
3. Guarantor hereby consents to the Consent and Sixth Amendment.
Guarantor expressly agrees that the Consent and Sixth
Amendment shall in no way affect or alter the rights, duties,
or obligations of Guarantor, the Banks or Collateral Agent
under the [Bell Canada Guaranty] [Bell-Tenex Guaranty]
[Bell-Future Tech Guaranty].
<PAGE>
4. Pursuant to the [Bell Canada Guaranty] [Bell-Tenex Guaranty]
[Bell-Future Tech Guaranty], Guarantor continues to guaranty
the payment when due of, inter alia, all loans, advances,
debts, liabilities and obligations, however arising, owed by
the Borrower to any Agent or any Bank of every kind and
description now existing or hereafter arising pursuant to the
terms of the Restated Credit Agreement as amended by the
Consent and Sixth Amendment or any of the other Credit
Documents.
5. The [Pledge] [Security] Agreement, dated as of [November 20,
1998][July 21, 1999] executed by Guarantor in favor of
Collateral Agent (the "[Pledge] [Security] Agreement") and any
other security granted to any Agent or any of the Banks from
time to time as security for the obligations of Guarantor
under the [Bell Canada Guaranty] [Bell-Tenex Guaranty]
[Bell-Future Tech Guaranty] remains in full force and effect
and unamended, and the security interests, mortgages, charges,
liens, assignments, transfers and pledges granted by Guarantor
pursuant to the [Pledge] [Security] Agreement and such other
documents (if any) continue to extend to all debts,
liabilities and obligations, present or future, direct or
indirect, absolute or contingent, matured or unmatured, at any
time due or accruing due, of Guarantor to any of the Banks and
any Agent arising under, in connection with or pursuant to the
Restated Credit Agreement and the other Credit Documents, as
acknowledged and confirmed by this Guarantor Consent Letter,
notwithstanding the amendment of the Restated Credit Agreement
by the Consent and Sixth Amendment.
6. From and after the date hereof, the term "Restated Credit
Agreement" as used in the [Bell-Canada Guaranty] [Bell-Tenex
Guaranty] [Bell-Future Tech Guaranty] shall mean the Restated
Credit Agreement, as amended by the Consent and Sixth
Amendment.
7. Guarantor's consent to the Consent and Sixth Amendment shall
not be construed (i) to have been required by the terms of the
[Bell Canada Guaranty] [Bell-Tenex Guaranty] [Bell-Future Tech
Guaranty], any other Credit Document or any other document,
instrument or agreement relating thereto or (ii) to require
the consent of Guarantor in connection with any future
amendment of the Restated Credit Agreement or any other Credit
Document.
<PAGE>
IN WITNESS WHEREOF, Guarantor has executed this Guarantor Consent
Letter as of the day and year first written above.
[BELL/MICROPRODUCTS CANADA-TENEX DATA ULC]
[BELL MICROPRODUCTS CANADA INC.]
[BELL MICROPRODUCTS - FUTURE TECH, INC.]
By: ____________________________
Name:_______________________
Title:________________________
<PAGE>
APPENDIX 4
FORM OF RDI PLEDGE AGREEMENT
RDI PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT, dated as of May [___], 2000, is executed by
Rorke Data, Inc., a Minnesota corporation ("RDI"), in favor of Collateral Agent
for the financial institutions which are from time to time parties to the
Restated Credit Agreement defined in Recital A below (collectively, the
"Banks").
RECITALS
A. Bell Microproducts Inc., a California corporation (the "Borrower"),
the Banks, California Bank & Trust (formerly known as Sumitomo Bank of
California) ("Administrative Agent"), and Union Bank of California (the
"Collateral Agent") are parties to a Third Amended and Restated Credit Agreement
dated as of November 12, 1998, as amended by (i) that certain First Amendment to
Third Amended and Restated Credit Agreement dated as of May 13, 1999, (ii) that
certain Second Amendment to Third Amended and Restated Credit Agreement dated as
of July 21, 1999, (iii) that certain Waiver and Third Amendment to Third Amended
and Restated Credit Agreement dated as of October 15, 1999, (iv) that certain
Fourth Amendment to Third Amended and Restated Credit Agreement dated as of
December 8, 1999, (v) that certain Fifth Amendment to Third Amended and Restated
Credit Agreement dated as of December 31, 1999, and (vi) that certain Consent
and Sixth Amendment to Third Amended and Restated Credit Agreement dated as of
May [__], 2000 (as amended, the "Restated Credit Agreement").
B. The Banks' obligations to continue to make the credit accommodations
available to Borrower as set forth in the Restated Credit Agreement is subject,
among other conditions, to receipt by Collateral Agent of this Pledge Agreement,
duly executed by RDI. RDI expects to derive substantial direct and indirect
benefit from the transactions contemplated by the Restated Credit Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, RDI hereby agrees with Collateral Agent, for the ratable benefit
of the Banks and the Agents, as follows:
1. Definitions and Interpretation. When used in this Pledge Agreement,
the following terms shall have the following respective meanings:
"Administrative Agent" shall have the meaning given to that
term in the Recital A hereof.
"Banks" shall have the meaning given to that term in the
introductory paragraph hereof.
<PAGE>
"Borrower" shall have the meaning given to that term in
Recital A hereof.
"Collateral" shall have the meaning given to that term in
paragraph 2 hereof.
"Collateral Agent" shall have the meaning given to that term
in the Recital A hereof.
"Domestic Subsidiary" shall mean, with respect to any Person,
any Subsidiary of such Person which is created or organized in the
United States under the laws of the United States or any state of the
United States, and with respect to RDI, shall include, without
limitation, as of the date hereof, each of the Subsidiaries listed on
Part A of Attachment 1 hereto.
"Domestic Subsidiary Membership Interests" shall mean all
Subsidiary Membership Interests in Domestic Subsidiaries.
"Domestic Subsidiary Shares" shall mean all Subsidiary Shares
in Domestic Subsidiaries.
"Foreign Subsidiary" shall mean, with respect to any Person,
any Subsidiary of such Person which is not a Domestic Subsidiary, and
with respect to RDI, shall include, without limitation, as of the date
hereof, each of the Subsidiaries listed on Part B of Attachment 1
hereto.
"Foreign Subsidiary Membership Interests" shall mean all
Subsidiary Membership Interests in Foreign Subsidiaries.
"Foreign Subsidiary Nonvoting Shares" shall mean all
Subsidiary Shares in Foreign Subsidiaries having no voting power,
including without limitation as of the date hereof, the Subsidiary
Shares so designated in Part B of Attachment 1 hereto.
"Foreign Subsidiary Voting Shares" shall mean all Subsidiary
Shares in Foreign Subsidiaries having voting power, including without
limitation as of the date hereof, the Subsidiary Shares so designated
in Part B of Attachment 1 hereto.
"Governance Agreements" shall mean, with respect to any entity
which is not a corporation, the operating agreement and the other
organizational or governing documents of such entity.
"Maximum Percentage" shall mean, with respect to the Foreign
Subsidiary Voting Shares of any Foreign Subsidiary, the maximum
percentage of such shares that can be pledged to Collateral Agent
without increasing the gross income of RDI pursuant to Sections 951 and
956(c) (or any successor provisions) of the Internal Revenue Code of
1986, as amended, which percentage as of the date hereof shall be
sixty-six percent (66%).
<PAGE>
"Membership Interests" shall mean, with respect to any entity
that is not a corporation, all membership interests issued by such
entity, together with (a) all interest in the property and assets of
such entity; (b) all interest in and to all capital and other accounts
maintained by such entity; (c) all rights and interests in the
Governance Agreements of such entity, including any and all enforcement
and cure rights thereunder, and all income, gain, loss, deductions,
credits, capital contributions, distributions, and refunds of capital
of any nature and the proceeds of any of the foregoing; and (d) all
rights to exercise and enforce every right, power, remedy, authority,
option and privilege relating to such entity, including without
limitation, any power to dissolve such entity or terminate, cancel or
modify any of the Governance Agreements, to exercise any right of first
refusal or option to acquire any membership interest in such entity and
the right to acquire or offer to third parties the membership interests
of such entity pursuant to its Governance Agreements.
"Obligations" shall mean and include all loans, advances,
debts, liabilities and obligations, howsoever arising, owed by Borrower
to any Bank or any Agent of every kind and description (whether or not
evidenced by any note or instrument and whether or not for the payment
of money), direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising pursuant to the terms of the
Restated Credit Agreement or any of the other Credit Documents,
including without limitation all interest, fees, charges, expenses,
attorneys' fees and accountants' fees chargeable to Borrower or payable
by Borrower thereunder.
"Pledge Agreement" shall mean this Pledge Agreement as further
amended, modified, supplemented or replaced from time to time.
"Pledged Membership Interests" shall mean the Subsidiary
Membership Interests described in subparagraphs 2(b) and 2(d) hereof,
whether now owned or hereafter acquired, whether certificated or
uncertificated and whether or not described in Attachment 1.
"Pledged Shares" shall mean the Subsidiary Shares described in
subparagraphs 2(a) and 2(c) hereof, whether now owned or hereafter
acquired, whether certificated or uncertificated and whether or not
described in Attachment 1.
"Restated Credit Agreement" shall have the meaning given to
that term in Recital A hereof as further amended, modified,
supplemented or replaced from time to time.
"RDI" shall have the meaning given to that term in the
introductory paragraph hereof.
"Subsidiary Membership Interests" shall mean, with respect to
any Subsidiary of RDI the ownership interest of which is not
represented by certificated or uncertificated securities, all
Membership Interests issued by such Subsidiary.
"Subsidiary Shares" shall mean, with respect to any Subsidiary
of RDI, all Equity Securities issued by such Subsidiary.
"UCC" shall mean the Uniform Commercial Code as in effect in
the State of California from time to time.
<PAGE>
Unless otherwise defined herein, all other capitalized terms used herein and
defined in the Restated Credit Agreement shall have the respective meanings
given to those terms in the Restated Credit Agreement, and all terms defined in
the UCC shall have the respective meanings given to those terms in the UCC. The
rules of construction set forth in Section I of the Restated Credit Agreement
shall, to the extent not inconsistent with the terms of this Pledge Agreement,
apply to this Pledge Agreement and are hereby incorporated by reference.
2. Pledge. As security for the Obligations, RDI hereby pledges and
assigns to Collateral Agent (for the ratable benefit of the Banks and the
Agents) and grants to Collateral Agent (for the ratable benefit of the Banks and
the Agents) a security interest in all right, title and interest of RDI in and
to the property described in subparagraphs (a) - (f) below, whether now owned or
hereafter acquired (collectively and severally, the "Collateral"):
(a) All Domestic Subsidiary Shares;
(b) All Domestic Subsidiary Membership Interests;
(c) All Foreign Subsidiary Voting Shares of each Foreign
Subsidiary equal to the Maximum Percentage therefor and all Foreign
Subsidiary Nonvoting Shares;
(d) All Foreign Subsidiary Membership Interests;
(e) All other certificated and uncertificated securities;
(f) All dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed or
distributable in respect of or in exchange for any of the property
described in subparagraph (a) through (e) above; and
(g) All proceeds of the foregoing.
3. Representations and Warranties. RDI represents and warrants to the
Agents and the Banks as follows:
(a) RDI is the record legal and beneficial owner of the
Collateral (or, in the case of after-acquired Collateral, at the time
RDI acquires rights in the Collateral, will be the record legal and
beneficial owner thereof). No other Person has (or, in the case of
after-acquired Collateral, at the time RDI acquires rights therein,
will have) any right, title, claim or interest (by way of Lien (other
than Permitted Liens), purchase option or otherwise) in, against or to
the Collateral.
(b) Collateral Agent has (or in the case of after-acquired
Collateral, at the time RDI acquires rights therein, will have) a first
priority perfected security interest in the Collateral.
(c) All Pledged Shares and all Pledged Membership Interests
have been (or in the case of after-acquired Pledged Shares or Pledged
Membership Interests, at the time RDI acquires rights therein, will
have been) duly authorized, validly issued and fully paid and are (or
in the case of after-acquired Pledged Shares or Pledged Membership
Interests, at the time RDI acquires rights therein, will be)
non-assessable.
<PAGE>
(d) No portion of the Pledged Shares consists of
uncertificated securities.
(e) RDI has delivered to Collateral Agent, together with all
necessary stock powers, endorsements, assignments and other necessary
instruments of transfer, the originals of all Pledged Shares, other
certificated securities, other Collateral and all certificates,
instruments and other writings evidencing the same.
(f) RDI keeps all records concerning the Pledged Membership
Interests, the other Collateral and all certificates, instruments and
other writings evidencing the same at its chief executive office
located at [_____________________________];
(g) No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Authority or
other Person (including, without limitation, the shareholders or
members of any Person) is required in connection with the execution,
delivery and performance by RDI of this Pledge Agreement, except such
consents, approvals, orders, authorizations, registrations,
declarations and filings that are so required and which have been
obtained and are in full force and effect;
(h) Set forth in Attachment 1 hereto is a true, complete and
accurate list of all Equity Securities and Membership Interests issued
by RDI's Subsidiaries and all other Equity Securities and Membership
Interests owned by RDI. All information set forth in Attachment 1 is
true, complete and accurate.
4. Covenants. RDI hereby agrees as follows:
(a) RDI, at RDI's expense, shall promptly procure, execute and
deliver to Collateral Agent all documents, instruments and agreements
and perform all acts which are necessary or desirable, or which
Collateral Agent may reasonably request, to establish, maintain,
preserve, protect and perfect the Collateral, the Lien granted to
Collateral Agent therein and the first priority of such Lien or to
enable Collateral Agent to exercise and enforce its rights and remedies
hereunder with respect to any Collateral. Without limiting the
generality of the preceding sentence, RDI shall (i) procure, execute
and deliver to Collateral Agent all stock powers, endorsements,
assignments, financing statements and other instruments of transfer
requested by Collateral Agent, (ii) deliver to Collateral Agent
promptly upon receipt the originals of all Pledged Shares, other
certificated securities, other Collateral and all certificates,
instruments and other writings evidencing the same and (iii) cause the
Lien of Collateral Agent to be recorded or registered in the books of
any financial intermediary or clearing corporation reasonably requested
by Collateral Agent.
(b) RDI shall pay promptly when due all taxes and other
Governmental Charges, all Liens and all other charges now or hereafter
imposed upon, relating to or affecting any Collateral, except to the
extent that RDI is contesting such taxes or other Governmental Charges
in good faith by appropriate proceedings with adequate reserves
established therefor in accordance with GAAP.
<PAGE>
(c) With respect to Pledged Membership Interests, RDI shall
not (i) admit any person or entity as an additional or substitute
member of such entity without Collateral Agent's prior written consent,
which Collateral Agent may give or withhold in Collateral Agent's sole
discretion; or (ii) alter, amend or modify the Governance Agreements
without Collateral Agent's prior written consent, which Collateral
Agent shall not unreasonably withhold; provided, however, that
Collateral Agent's prior written consent shall not be required for
technical amendments to the Governance Agreements which (A) in no way
materially affect Assignor's rights or obligations under the Governance
Agreements or (B) in no way affect the Borrower's rights or obligations
or affect the Borrower's ability to perform its obligations or exercise
its rights under the Credit Documents; provided further that technical
amendments shall not include amendments to the Governance Agreements
that affect voting or consent rights.
(d) Without ninety (90) days' prior written notice to
Collateral Agent, RDI shall not change its name or place of business
(or, if RDI has more than one place of business, its chief executive
office), or the office in which RDI's records relating to the Pledged
Membership Interests are kept.
(e) RDI shall deposit, or cause to be deposited, all
remittances, checks and other funds (in whatever form) received with
respect to Collateral to a deposit account in which Collateral Agent
has a first priority perfected security interest.
(f) RDI shall appear in and defend any action or proceeding
which may affect its title to or Collateral Agent's interest in the
Collateral.
(g) RDI shall not surrender or lose possession of (other than
to Collateral Agent), sell, encumber, lease, rent, option, or otherwise
dispose of or transfer any Collateral or right or interest therein
except as permitted in the Restated Credit Agreement.
5. Voting Rights and Dividends Prior to Payment Default. Unless an
Event of Default under Subparagraph 6.01(a) of the Restated Credit Agreement
(whether resulting from the failure of RDI to make a scheduled payment, a
payment due upon acceleration or otherwise) has occurred and is continuing and
RDI has not made the appropriate payments under the RDI Guaranty in connection
therewith:
(a) RDI may exercise or refrain from exercising any and all
voting and other consensual rights pertaining to the Pledged Shares and
the Pledged Membership Interests or any part thereof; provided,
however, that RDI shall not exercise or refrain from exercising any
such rights where the consequence of such action or inaction would be
(i) to impair any Collateral, the Lien granted to Collateral Agent
therein, the first priority of such Lien or Collateral Agent's rights
and remedies hereunder with respect to any Collateral or (ii) otherwise
inconsistent with the terms of this Pledge Agreement and the other
Credit Documents.
<PAGE>
(b) RDI may receive and retain all dividends and interest paid
in cash in respect of the Pledged Shares and the Pledged Membership
Interests, except for any such dividends and interest paid in
connection with a partial or total liquidation or dissolution or in
connection with a reduction of capital, capital surplus or
paid-in-surplus. RDI shall promptly deliver to Collateral Agent to hold
as Collateral all dividends and interest which RDI is not entitled to
receive and retain pursuant to the preceding sentence, in the same form
as so received (with any necessary endorsement), and, until so
delivered, shall hold such dividends and interest in trust for the
benefit of Collateral Agent, segregated from the other property or
funds of RDI.
6. Authorized Action by Collateral Agent. RDI hereby irrevocably
appoints Collateral Agent as its attorney-in-fact and agrees that Collateral
Agent may perform (but Collateral Agent shall not be obligated to and shall
incur no liability to RDI or any third party for failure so to do) any act which
RDI is obligated by this Pledge Agreement to perform, and to exercise such
rights and powers as RDI might exercise with respect to the Collateral,
including, without limitation, the right to (a) collect by legal proceedings or
otherwise and endorse, receive and receipt for all dividends, interest,
payments, proceeds and other sums and property now or hereafter payable on or on
account of the Collateral; (b) enter into any extension, reorganization,
deposit, merger, consolidation or other agreement pertaining to, or deposit,
surrender, accept, hold or apply other property in exchange for the Collateral;
(c) insure, process, preserve and enforce the Collateral; (d) make any
compromise or settlement, and take any action it deems advisable, with respect
to the Collateral; (e) pay any Indebtedness of RDI relating to the Collateral;
and (f) execute UCC financing statements and other documents, instruments and
agreements required hereunder; provided, however, that Collateral Agent may
exercise such powers only after the occurrence and during the continuance of an
Event of Default. RDI agrees to reimburse Collateral Agent within thirty (30)
days after written demand for all reasonable costs and expenses, including
attorneys' fees, Collateral Agent may incur while acting as RDI's
attorney-in-fact hereunder, all of which costs and expenses are included in the
Obligations. RDI agrees that such care as Collateral Agent gives to the
safekeeping of its own property of like kind shall constitute reasonable care of
the Collateral when in Collateral Agent's possession; provided, however, that
Collateral Agent shall not be required to make any presentment, demand or
protest, or give any notice and need not take any action to preserve any rights
against any prior party or any other Person in connection with the Obligations
or with respect to the Collateral.
7. Events of Default.
(a) Event of Default. RDI shall be deemed in default under
this Pledge Agreement upon the occurrence and during the continuance of
an Event of Default, as that term is defined in the Restated Credit
Agreement, which RDI has not otherwise cured under the RDI Guaranty.
(b) Voting Rights and Dividends. Upon the occurrence and
during the continuance of an Event of Default under Subparagraph
6.01(a) of the Restated Credit Agreement (whether resulting from the
failure of Borrower to make a scheduled payment, a payment due upon
acceleration or otherwise, or RDI to make the appropriate payments
under the RDI Guaranty):
<PAGE>
(i) All rights of RDI to exercise the voting and
other consensual rights which it would otherwise be entitled
to exercise pursuant to subparagraph 5(a) hereof and to
receive the dividends and interest payments which it would
otherwise be authorized to receive and retain pursuant to
subparagraph 5(a) hereof shall cease and all such rights shall
thereupon become vested in Collateral Agent which shall
thereupon have the sole right, but not the obligation, to
exercise such voting and other consensual rights and to
receive and hold as Collateral such dividends and interest
payments.
(ii) RDI shall promptly deliver to Collateral Agent
to hold as Collateral all dividends and interest received by
RDI in the same form as so received (with any necessary
endorsement), and, until so delivered, shall hold such
dividends and interest in trust for the benefit of Collateral
Agent, segregated from the other property or funds of RDI.
(c) Other Rights and Remedies. In addition to all other rights
and remedies granted to Collateral Agent by this Pledge Agreement, the
Restated Credit Agreement, the other Credit Documents, the UCC and
other applicable Governmental Rules, Collateral Agent may, upon the
occurrence and during the continuance of any Event of Default, which
RDI has not otherwise cured under the RDI Guaranty, exercise any one or
more of the following rights and remedies: (i) collect, receive,
appropriate or realize upon the Collateral or otherwise foreclose or
enforce Collateral Agent's security interests in any or all Collateral
in any manner permitted by applicable Governmental Rules or in this
Pledge Agreement; (ii) notify any or all issuers of or transfer or
paying agents for the Collateral or any applicable clearing
corporation, financial intermediary or other Person to register the
Collateral in the name of Collateral Agent or its nominee and/or to pay
all dividends, interest and other amounts payable in respect of the
Collateral directly to Collateral Agent; (iii) subject to applicable
law, sell or otherwise dispose of any or all Collateral at one or more
public or private sales, whether or not such Collateral is present at
the place of sale, for cash or credit or future delivery, on such terms
and in such manner as Collateral Agent may determine; and (iv) require
RDI to assemble all records and information relating to the Collateral
and make it available to Collateral Agent at a place to be designated
by Collateral Agent. In any case where notice of any sale or
disposition of any Collateral is required, RDI hereby agrees that seven
(7) days notice of such sale or disposition is reasonable.
(d) Securities Laws.
(i) RDI acknowledges and recognizes that Collateral
Agent may be unable to effect a public sale of all or a part
of the Pledged Shares and may be compelled to resort to one or
more private sales to a restricted group of purchasers who
will be obligated to agree, among other things, to acquire the
Pledged Shares for their own account, for investment and not
with a view to the distribution or resale thereof. RDI
acknowledges that any such private sales may be at prices and
<PAGE>
on terms less favorable to Collateral Agent than those of
public sales, and agrees that such private sales shall be
deemed to have been made in a commercially reasonable manner
and that Collateral Agent has no obligation to delay sale of
any Pledged Shares to permit the issuer thereof to qualify the
Pledged Shares for distribution by prospectus under applicable
Canadian securities laws, or register it for public sale under
the Securities Act of 1933, as amended, or under any state
securities law.
(ii) Upon the occurrence of an Event of Default, not
otherwise cured by RDI under the RDI Guaranty and at
Collateral Agent's request, RDI shall, and shall cause all
issuers of Collateral and all officers and directors thereof
and all other necessary Persons to, execute and deliver all
documents, instruments and agreements and perform all other
acts necessary or, in the opinion of Collateral Agent,
advisable to sell the Collateral in any public or private
sale, including any acts requested by Collateral Agent to (A)
register any Collateral under the Securities Act of 1933, (B)
qualify any Collateral under any state securities or "Blue
Sky" laws or (C) otherwise permit any such sale to be made in
full compliance with all applicable Governmental Rules.
8. Authorizations. RDI authorizes the Banks and the Agents, in their
discretion, without notice to RDI, irrespective of any change in the financial
condition of Borrower, RDI or any other guarantor of the Obligations since the
date hereof, and without affecting or impairing in any way the liability of RDI
hereunder, from time to time to (a) create new Obligations, and, either before
or after receipt of notice of revocation, renew, compromise, extend, accelerate
or otherwise change the time for payment or performance of, or otherwise change
the terms of the Obligations or any part thereof, including increase or decrease
of the rate of interest thereon; (b) take and hold security for the payment or
performance of the Obligations and exchange, enforce, waive or release any such
security; (c) apply such security and direct the order or manner of sale
thereof; (d) purchase such security at public or private sale; (e) otherwise
exercise any right or remedy it may have against Borrower, RDI, any other
guarantor of the Obligations or any security, including, without limitation, the
right to foreclose upon any such security by judicial or nonjudicial sale; (f)
settle, compromise with, release or substitute any one or more makers, endorsers
or guarantors of the Obligations or any Collateral; and (g) assign the
Obligations, this Pledge Agreement, or the other Credit Documents in whole or in
part.
9. Waivers. RDI waives (a) any right to require the Banks or the Agents
to (i) proceed against Borrower or any other guarantor of the Obligations, (ii)
proceed against or exhaust any security received from Borrower or any other
guarantor of the Obligations, or (iii) pursue any other remedy in the Banks' or
the Agents' power whatsoever; (b) any defense arising by reason of the
application by Borrower of the proceeds of any borrowing; (c) any defense
resulting from the absence, impairment or loss of any right of reimbursement,
subrogation, contribution or other right or remedy of RDI against Borrower, any
other guarantor of the Obligations or any security, whether resulting from an
election by the Agents or the Banks to foreclose upon security by nonjudicial
sale, or otherwise; (d) any setoff or counterclaim of Borrower or any defense
which results from any disability or other defense of Borrower or the cessation
or stay of enforcement from any cause whatsoever of the liability of Borrower
(including, without limitation, the lack of validity or enforceability of any
Credit Document); (e) any right to exoneration of sureties which would otherwise
be applicable; (f) until all obligations of the Banks to extend credit under the
Restated Credit Agreement are terminated and all Obligations of Borrower are
satisfied in full, any right of subrogation or reimbursement and, if there are
any other guarantors of the Obligations, any right of contribution, and right to
<PAGE>
enforce any remedy which any Agent or any Bank now has or may hereafter have
against Borrower, and any benefit of, and any right to participate in, any
security now or hereafter received by the Agents or the Banks; (g) all
presentments, demands for performance, notices of non-performance, notices
delivered under the Restated Credit Agreement or any Credit Document, protests,
notice of dishonor, and notices of acceptance of this Pledge Agreement and of
the existence, creation or incurring of new or additional Obligations and
notices of any public or private foreclosure sale; (h) the benefit of any
statute of limitations to the extent permitted by law; (i) any appraisement,
valuation, stay, extension, moratorium, redemption or similar law or similar
rights for marshalling; and (j) any right to be informed by any Agent or any
Bank of the financial condition of Borrower or any other guarantor of the
Obligations or any change therein or any other circumstances bearing upon the
risk of nonpayment or nonperformance of the Obligations. RDI has the ability and
assumes the responsibility for keeping informed of the financial condition of
Borrower and any other guarantors of the Obligations and of other circumstances
affecting such nonpayment and nonperformance risks. Without limiting the
generality of any of the foregoing, RDI hereby waives (i) all rights and
defenses arising out of an election of remedies by any Agent or any Bank, even
though that election of remedies, such as a nonjudicial foreclosure with respect
to security for an obligation, has destroyed RDI's rights of subrogation and
reimbursement against Borrower by the operation of Section 580d of the Code of
Civil Procedure or otherwise, (ii) all rights and defenses RDI may have by
reason of protection afforded to Borrower with respect to the Obligations
pursuant to the antideficiency or other laws of California limiting or
discharging the Pledge Agreement, including, without limitation, Section 580a,
580b, 580d, or 726 of the California Code of Civil Procedure, and (iii) all
other rights and defenses available to RDI by reason of Sections 2787 to 2855,
inclusive, of the California Civil Code.
10. Miscellaneous.
(a) Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or
upon Collateral Agent or RDI under this Pledge Agreement shall be by
facsimile or in writing and faxed, mailed, telexed or delivered to each
party at its facsimile number or its address set forth below. All such
notices and communications: when sent by Federal Express or other
overnight service, shall be effective on the Business Day following the
deposit with such service; when mailed, first class postage prepaid and
addressed as aforesaid in the mails, shall be effective upon receipt;
when telexed, shall be effective upon receipt of answerback; when
delivered by hand, shall be effective upon delivery; and when faxed,
shall be effective upon confirmation of receipt.
Collateral Agent: Union Bank of California, N.A.
Northern California Commercial Banking Group
350 California Street, 10th Floor
San Francisco, CA 94104
Attention: William Hinch
Vice President
Telephone: (415) 705-7028
Facsimile: (415) 705-7111
<PAGE>
RDI: Rorke Data, Inc.
c/o Bell Microproducts, Inc.
1941 Ringwood Avenue
San Jose, CA 95131
Attn: Mr. Don W. Bell
President
Telephone: (408) 451-1635
Facsimile: (408) 451-1694
(b) Waivers; Amendments. Any term, covenant, agreement or
condition of this Pledge Agreement may be amended or waived by written
instruments signed by RDI and Collateral Agent. No failure or delay by
any Agent or any Bank in exercising any right hereunder shall operate
as a waiver thereof or of any other right nor shall any single or
partial exercise of any such right preclude any other further exercise
thereof or of any other right. Unless otherwise specified in any such
waiver or consent, a waiver or consent given hereunder shall be
effective only in the specific instance and for the specific purpose
for which given.
(c) Successors and Assigns. This Pledge Agreement shall be
binding upon and inure to the benefit of the Agents, the Banks and RDI
and their respective successors and assigns; provided, however, that
the Agents, the Banks and RDI may sell, assign and delegate their
respective rights and obligations hereunder only as permitted by the
Restated Credit Agreement. The Agents and the Banks may disclose this
Pledge Agreement as provided in the Restated Credit Agreement.
(d) Partial Invalidity. If at any time any provision of this
Pledge Agreement is or becomes illegal, invalid or unenforceable in any
respect under the law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions of this Pledge
Agreement nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in any way be
affected or impaired thereby.
(e) Cumulative Rights, etc. The rights, powers and remedies of
the Agents and the Banks under this Pledge Agreement shall be in
addition to all rights, powers and remedies given to the Agents and the
Banks by virtue of any applicable Governmental Rule, the Restated
Credit Agreement, any other Credit Document or any other agreement, all
of which rights, powers, and remedies shall be cumulative and may be
exercised successively or concurrently without impairing Collateral
Agent's rights hereunder. RDI waives any right to require any Agent or
any Bank to proceed against any Person or to exhaust any Collateral or
to pursue any remedy in such Agent's or such Bank's power.
(f) Payments Free of Taxes, Etc. All payments made by RDI
under this Pledge Agreement shall be made by RDI free and clear of and
without deduction for any and all present and future taxes, levies,
charges, deductions and withholdings. In addition, RDI shall pay
promptly when due any stamp or other taxes, levies or charges of any
jurisdiction with respect to the execution, delivery, registration,
<PAGE>
performance and enforcement of this Pledge Agreement. Upon request by
Collateral Agent, RDI shall furnish evidence satisfactory to Collateral
Agent that all requisite authorizations and approvals by, and notices
to and filings with, governmental authorities and regulatory bodies
have been obtained and made and that all requisite taxes, levies and
charges have been paid.
(g) Governing Law and Jurisdiction. This Pledge Agreement
shall be governed by and construed in accordance with the laws of the
State of California without reference to conflicts of law rules. Any
legal action or proceeding with respect to this Pledge Agreement may be
brought in the courts of the State of California or of the United
States for the Northern District of California, and by execution and
delivery of this Pledge Agreement, RDI consents, for itself and in
respect of its property, to the non-exclusive jurisdiction of those
courts. RDI irrevocably waives any objection, including any objection
to the laying of venue or based on the grounds of forum non conveniens,
which it may now or hereafter have to the bringing of any action or
proceeding in such jurisdiction in respect of this Pledge Agreement.
RDI waives personal service of any summons, complaint or other process,
which may be made by any other means permitted by California law.
(h) Arbitration.
(i) This subparagraph 10(h) concerns the resolution
of any controversies or claims between or among RDI, any Bank
and any Agent, including but not limited to those that arise
from:
(A) This Pledge Agreement or any other
Credit Document to which RDI is a party;
(B) Any violation of this Pledge Agreement
or any other Credit Document to which RDI is a party;
or
(C) Any claims for damages resulting from
any business conducted between RDI and any Bank or
any Agent, including claims for injury to persons,
property or business interests.
(ii) At the request of RDI, any Bank or any Agent,
any controversies or claims will be settled by arbitration in
accordance with the United States Arbitration Act. The United
States Arbitration Act will apply even though this Agreement
provides that it is governed by California law.
(iii) Arbitration proceedings will be administered by
the American Arbitration Association and will be subject to
its commercial rules of arbitration. The arbitration will be
conducted within the California county of San Francisco.
(iv) For purposes of the application of the statute
of limitation, the filing of an arbitration pursuant to this
subparagraph is the equivalent of the filing of a lawsuit, and
any claim or controversy which may be arbitrated under this
subparagraph is subject to any applicable statute of
limitations. The arbitrators will have the authority to decide
whether any such claim or controversy is barred by the statute
of limitations and if so to dismiss the arbitration on that
basis.
<PAGE>
(v) If there is a dispute as to whether an issue is
arbitrable, the arbitrators will have the authority to resolve
any such dispute.
(vi) The decision that results from an arbitration
proceeding may be submitted to any authorized court of law to
be confirmed and enforced.
(vii) The procedure described above will not apply if
the controversy or claim, at the time of the proposed
submission to arbitration arises from or relates to an
obligation to Bank secured by real property located in
California. If the obligation is secured by real property,
RDI, each Bank and each Agent must consent to submission of
the claim or controversy to arbitration. If all parties do not
consent to arbitration, the controversy or claim will be
settled as follows:
(A) RDI, the Banks and the Agents will
designate a referee (or a panel of referees) selected
under the auspices of the American Arbitration
Association in the same manner as arbitrators are
selected in Association-sponsored proceedings;
(B) The designated referee (or the panel of
referees) will be appointed by a court as provided in
California Code of Civil Procedure Section 638 and
the following related sections;
(C) The referee (or the presiding referee of
the panel) will be an active attorney or a retired
judge; and
(D) The award that results from the decision
of the referee (or the panel) will be entered as a
judgment in the court that appointed the referee, in
accordance with the provisions of California Code of
Civil Procedure Sections 644 and 645.
(viii) This subparagraph 10(h) does not limit the
right of RDI, any Bank or any Agent to:
(A) Exercise self-help remedies such as
setoff;
(B) Foreclose against or sell any real or
personal property collateral; or
(C) Take action in a court of law, before,
during or after the arbitration proceeding to obtain
an interim remedy or additional or supplementary
remedies.
<PAGE>
(ix) The pursuit of or a decision in an action for
interim, additional or supplementary remedies, or the filing
of a court action, does not constitute a waiver of the right
of RDI, any Bank or any Agent, including the suing party, to
submit the controversy or claim to arbitration.
(i) JURY TRIAL. EACH OF RDI, THE BANKS AND THE AGENTS, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY
ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
PLEDGE AGREEMENT OR ANY OTHER CREDIT DOCUMENT NOT RESOLVED PURSUANT TO
SUBPARAGRAPH 10(h) HEREOF.
<PAGE>
IN WITNESS WHEREOF, RDI has caused this Pledge Agreement to be executed
as of the day and year first above written.
RORKE DATA, INC.
By:
Name:
Title:
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
as Collateral Agent
By:
Name:
Title:
<PAGE>
ATTACHMENT 1
TO PLEDGE AGREEMENT
Part A
Domestic Subsidiary Shares and Domestic Subsidiary Membership Interests
Shares or Shares or
Outstanding Membership Membership
Shares or Interests Owned Interests Owned
Class Membership Directly Indirectly
Issuer of Stock Interests by RDI by RDI
Not Applicable
No domestic
subsidiaries
<PAGE>
ATTACHMENT 1
TO PLEDGE AGREEMENT
Part B
Foreign Subsidiary Shares and Foreign Subsidiary Membership Interests
Shares or Shares or
Outstanding Membership Membership
Shares or Interests Owned Interests Owned
Class Membership Directly Indirectly
Issuer of Stock(1) Interests by RDI by RDI
Rorke Data Europe
Holding B.V. Common [____] 400 0
---------------
(1) Asterisks indicate non-voting. Otherwise all listed are voting.
<PAGE>
APPENDIX 5
FORM OF RDI AND RORKE EUROPE GUARANTY
[RORKE DATA, INC.][RORKE EUROPE] GUARANTY
THIS GUARANTY, dated as of July 21, 1999 is executed by [RORKE DATA,
INC.][RORKE DATA EUROPE HOLDING B.V.], a [Minnesota][Netherlands] corporation
("Guarantor"), in favor of Collateral Agent for the financial institutions which
are from time to time parties to the Restated Credit Agreement referred to in
Recital A below (collectively, the "Banks").
RECITALS
A. Bell Microproducts Inc., a California corporation (the "Borrower"),
the Banks, California Bank & Trust (formerly known as Sumitomo Bank of
California) ("Administrative Agent"), and Union Bank of California (the
"Collateral Agent") are parties to a Third Amended and Restated Credit Agreement
dated as of November 12, 1998, as amended by (i) that certain First Amendment to
Third Amended and Restated Credit Agreement dated as of May 13, 1999, (ii) that
certain Second Amendment to Third Amended and Restated Credit Agreement dated as
of July 21, 1999, (iii) that certain Waiver and Third Amendment to Third Amended
and Restated Credit Agreement dated as of October 15, 1999, (iv) that certain
Fourth Amendment to Third Amended and Restated Credit Agreement dated as of
December 8, 1999, (v) that certain Fifth Amendment to Third Amended and Restated
Credit Agreement dated as of December 31, 1999, and (vi) that certain Consent
and Sixth Amendment to Third Amended and Restated Credit Agreement dated as of
May [__], 2000 (as amended, the "Restated Credit Agreement").
B. The Banks' obligations to continue to make the credit accommodations
available to Borrower as set forth in the Restated Credit Agreement is subject,
among other conditions, to receipt by Collateral Agent of this Guaranty, duly
executed by Guarantor. Guarantor expects to derive substantial direct and
indirect benefit from the transactions contemplated by the Restated Credit
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Guarantor hereby agrees with Collateral Agent, for the ratable
benefit of the Banks and the Agents, as follows:
1. Definitions and Interpretation.
(a) Definitions. When used in this Guaranty, the following
terms shall have the following respective meanings:
"Adjusted Net Worth" shall mean, with respect to
Guarantor at any time, the remainder of (i) the fair value of
the assets of Guarantor as of such date, minus (ii) the fair
value of the liabilities of Guarantor as of such date
(excluding, however, any liability of Guarantor hereunder),
such assets and liabilities to be determined in accordance
with any state or federal fraudulent conveyance or transfer
law which is applicable to this Guaranty.
<PAGE>
"Administrative Agent" shall have the meaning given
to that term in Recital A hereof.
"Banks" shall have the meaning given to that term in
the introductory paragraph hereof.
"Borrower" shall have the meaning given to that term
in the Recital A hereof.
"Disallowed Post-Commencement Interest and Expenses"
shall mean interest computed at the rate provided in the
Restated Credit Agreement and claims for reimbursement, costs,
expenses or indemnities under the terms of any of the Credit
Documents accruing or claimed at any time after the
commencement of any Insolvency Proceeding, if the claim for
such interest, reimbursement, costs, expenses or indemnities
is not allowable, allowed or enforceable against Borrower in
such Insolvency Proceeding.
"Guaranteed Obligations" shall mean all loans,
advances, debts, liabilities and obligations, howsoever
arising, owed by Borrower to any Agent or any Bank of every
kind and description (whether or not evidenced by any note or
instrument and whether or not for the payment of money),
direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising pursuant to the terms
of the Restated Credit Agreement or any of the other Credit
Documents, including, without limitation, all principal,
interest, rent, fees, taxes, charges, expenses, attorneys'
fees and accountants' fees chargeable to Borrower or payable
by Borrower thereunder.
"Guarantor" shall have the meaning given to that term
in the introductory paragraph hereof.
"Guarantor Documents" shall have the meaning given to
that term in paragraph 3 hereof.
"Insolvency Proceeding" shall mean any case or
proceeding under the United States Bankruptcy Code or any
other similar law, rule or regulation of the United States or
any jurisdiction or any other action or proceeding for the
reorganization, liquidation, appointment of a receiver,
rearrangement of debts, marshalling of assets or similar
action relating to Borrower or Guarantor, their respective
creditors or any substantial part of their respective assets,
whether or not any such case, proceeding or action is
voluntary or involuntary.
"Maximum Guaranty Amount" shall mean, at any time,
the greatest of (i) ninety-five percent (95%) of the Adjusted
Net Worth of Guarantor at such time, (ii) ninety-five percent
(95%) of the Adjusted Net Worth of Guarantor on the date
hereof and (iii) the value derived by Guarantor from the
Guaranteed Obligations incurred at or prior to such time.
<PAGE>
"Restated Credit Agreement" shall have the meaning
given to that term in the Recital A hereof.
Unless otherwise defined herein, all other capitalized terms used
herein and defined in the Restated Credit Agreement shall have the
respective meanings given to those terms in the Restated Credit
Agreement.
(b) Other Interpretive Provisions. The rules of construction
set forth in Section I of the Restated Credit Agreement shall, to the
extent not inconsistent with the terms of this Guaranty, apply to this
Guaranty and are hereby incorporated by reference. Guarantor
acknowledges receipt of copies of the Restated Credit Agreement and the
other Credit Documents.
2. Guaranty.
(a) Payment Guaranty. Guarantor unconditionally guarantees and
promises to pay and perform as and when due, whether at stated
maturity, upon acceleration or otherwise, any and all of the Guaranteed
Obligations. If any Insolvency Proceeding relating to Borrower is
commenced, Guarantor further unconditionally guarantees and promises to
pay and perform, upon the demand of Collateral Agent, any and all of
the Guaranteed Obligations (including any and all Disallowed
Post-Commencement Interest and Expenses) in accordance with the terms
of the Credit Documents, whether or not such obligations are then due
and payable by Borrower and whether or not such obligations are
modified, reduced or discharged in such Insolvency Proceeding. This
Guaranty is a guaranty of payment and not of collection.
(b) Continuing Guaranty. This Guaranty is an irrevocable
continuing guaranty of the Guaranteed Obligations which shall continue
in effect until all obligations of the Banks to extend credit to
Borrower have terminated and all of the Guaranteed Obligations have
been fully, finally and indefeasibly paid. If any payment on any
Guaranteed Obligation is set aside, avoided or rescinded or otherwise
recovered from any Agent or any Bank, such recovered payment shall
constitute a Guaranteed Obligation hereunder and, if this Guaranty was
previously released or terminated, it automatically shall be fully
reinstated, as if such payment was never made.
(c) Independent Obligation. The liability of Guarantor
hereunder is independent of the Guaranteed Obligations, and a separate
action or actions may be brought and prosecuted against Guarantor
irrespective of whether action is brought against Borrower or any other
guarantor of the Guaranteed Obligations or whether Borrower or any
other guarantor of the Guaranteed Obligations is joined in any such
action or actions.
<PAGE>
(d) Maximum Guaranty Amount. The liability of Guarantor under
this Guaranty shall not at any time exceed the Maximum Guaranty Amount;
provided, however, that the Agents and the Banks may permit the
Guaranteed Obligations to exceed the foregoing limitation without
affecting Guarantor's liability hereunder.
(e) Termination. This Guaranty shall continue to be in full
force and effect and applicable to any Guaranteed Obligations arising
thereafter which arise because prior payments of Guaranteed Obligations
are rescinded or otherwise required to be surrendered by any Agent or
any Bank after receipt.
3. Representations and Warranties. Guarantor represents and warrants to
the Agents and the Banks that (a) Guarantor is a corporation duly organized,
validly, existing and in good standing under the laws of its state of
incorporation and is duly qualified and in good standing in each jurisdiction
where the nature of its business or properties requires such qualification,
except where the failure to qualify could not have a Material Adverse Effect;
(b) the execution, delivery and performance by Guarantor of this Guaranty and
the other Credit Documents executed or to be executed by Guarantor
(collectively, the "Guarantor Documents") are within the power of Guarantor and
have been duly authorized by all necessary actions on the part of Guarantor; (c)
this Guaranty and the other Guarantor Documents have been duly executed and
delivered by Guarantor and constitute legal, valid and binding obligations of
Guarantor, enforceable against it in accordance with their terms, except as
limited by bankruptcy, insolvency or other laws of general application relating
to or affecting the enforcement of creditors' rights generally; (d) the
execution, delivery and performance of this Guaranty and the other Guarantor
Documents do not (i) violate any Requirement of Law applicable to Guarantor,
(ii) contravene any material Contractual Obligation of Guarantor, or (iii)
result in the creation or imposition of any Lien upon any property, asset or
revenue of Guarantor except Permitted Liens; (e) no consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Authority or other Person (including, without limitation, the shareholders of
any Person) is required in connection with the execution, delivery and
performance by Guarantor of this Guaranty and the other Guarantor Documents,
except such consents, approvals, orders, authorizations, registrations,
declarations and filings that are so required and which have been obtained and
are in full force and effect; (f) Guarantor has paid all taxes and other charges
imposed by any Governmental Authority due and payable by Guarantor other than
those which are being challenged in good faith by appropriate proceedings and
for which adequate reserves have been established; (g) Guarantor is not in
violation of any Requirement of Law or Contractual Obligation applicable to
Guarantor other than those the consequences of which could not have a Material
Adverse Effect; (h) Guarantor is neither an investment company (as defined in
the Investment Company Act of 1940) nor controlled by an investment company; and
(i) no litigation, investigation or proceeding of any Governmental Authority is
pending or, to the knowledge of Guarantor, threatened against Guarantor which,
if adversely determined, could have a Material Adverse Effect.
4. Covenants. Guarantor hereby agrees (a) to deliver to Collateral
Agent (i) promptly after Guarantor becomes aware of any Default or Event of
Default or of any other event or condition which could have a Material Adverse
Effect, notice thereof, and (ii) such other information regarding the business,
operations or financial or other condition of Guarantor as Collateral Agent may
reasonably request; (b) to the extent failure to do so could have a Material
Adverse Effect, to pay all taxes and other charges imposed by any Government
Authority upon Guarantor or its property as and when they become due; (c) to the
extent failure to do so could have a Material Adverse Effect, to comply with all
Requirements of Law and Contractual Obligations applicable to Guarantor; (d) to
maintain its corporate existence and all rights, privileges and franchises
<PAGE>
necessary for the conduct of its business; (e) to maintain with financially
sound and reputable insurance carriers insurance in such amounts, with such
deductibles and covering such risks as is customary for companies engaged in
similar businesses in the same geographic areas as Guarantor; and (f) to the
extent covenants set forth in the Restated Credit Agreement apply to
Subsidiaries of Borrower, to comply with such covenants.
5. Authorizations. Guarantor authorizes the Banks and the Agents, in
their discretion, without notice to Guarantor, irrespective of any change in the
financial condition of Borrower, Guarantor or any other guarantor of the
Guaranteed Obligations since the date hereof, and without affecting or impairing
in any way the liability of Guarantor hereunder, from time to time to (a) create
new Guaranteed Obligations, and, either before or after receipt of notice of
revocation, renew, compromise, extend, accelerate or otherwise change the time
for payment or performance of, or otherwise change the terms of the Guaranteed
Obligations or any part thereof, including increase or decrease of the rate of
interest thereon; (b) take and hold security for the payment or performance of
the Guaranteed Obligations and exchange, enforce, waive or release any such
security; (c) apply such security and direct the order or manner of sale
thereof; (d) purchase such security at public or private sale; (e) otherwise
exercise any right or remedy it may have against Borrower, Guarantor, any other
guarantor of the Guaranteed Obligations or any security, including, without
limitation, the right to foreclose upon any such security by judicial or
nonjudicial sale; (f) settle, compromise with, release or substitute any one or
more makers, endorsers or guarantors of the Guaranteed Obligations or any
Collateral; and (g) assign the Guaranteed Obligations, this Guaranty, or the
other Credit Documents in whole or in part.
6. Waivers. Guarantor waives (a) any right to require the Banks or the
Agents to (i) proceed against Borrower or any other guarantor of the Guaranteed
Obligations, (ii) proceed against or exhaust any security received from Borrower
or any other guarantor of the Guaranteed Obligations, or (iii) pursue any other
remedy in the Banks' or the Agents' power whatsoever; (b) any defense arising by
reason of the application by Borrower of the proceeds of any borrowing; (c) any
defense resulting from the absence, impairment or loss of any right of
reimbursement, subrogation, contribution or other right or remedy of Guarantor
against Borrower, any other guarantor of the Guaranteed Obligations or any
security, whether resulting from an election by the Agents or the Banks to
foreclose upon security by nonjudicial sale, or otherwise; (d) any setoff or
counterclaim of Borrower or any defense which results from any disability or
other defense of Borrower or the cessation or stay of enforcement from any cause
whatsoever of the liability of Borrower (including, without limitation, the lack
of validity or enforceability of any Credit Document); (e) any right to
exoneration of sureties which would otherwise be applicable; (f) until all
obligations of the Banks to extend credit under the Restated Credit Agreement
are terminated and all Guaranteed Obligations of Borrower are satisfied in full,
any right of subrogation or reimbursement and, if there are any other guarantors
of the Guaranteed Obligations, any right of contribution, and right to enforce
any remedy which any Agent or any Bank now has or may hereafter have against
Borrower, and any benefit of, and any right to participate in, any security now
or hereafter received by the Agents or the Banks; (g) all presentments, demands
for performance, notices of non-performance, notices delivered under the
Restated Credit Agreement or any Credit Document, protests, notice of dishonor,
<PAGE>
and notices of acceptance of this Guaranty and of the existence, creation or
incurring of new or additional Guaranteed Obligations and notices of any public
or private foreclosure sale; (h) the benefit of any statute of limitations to
the extent permitted by law; (i) any appraisement, valuation, stay, extension,
moratorium, redemption or similar law or similar rights for marshalling; and (j)
any right to be informed by any Agent or any Bank of the financial condition of
Borrower or any other guarantor of the Guaranteed Obligations or any change
therein or any other circumstances bearing upon the risk of nonpayment or
nonperformance of the Guaranteed Obligations. Guarantor has the ability and
assumes the responsibility for keeping informed of the financial condition of
Borrower and any other guarantors of the Guaranteed Obligations and of other
circumstances affecting such nonpayment and nonperformance risks. Without
limiting the generality of any of the foregoing, Guarantor hereby waives (i) all
rights and defenses arising out of an election of remedies by any Agent or any
Bank, even though that election of remedies, such as a nonjudicial foreclosure
with respect to security for an obligation, has destroyed such Guarantor's
rights of subrogation and reimbursement against Borrower by the operation of
Section 580d of the Code of Civil Procedure or otherwise, (ii) all rights and
defenses Guarantor may have by reason of protection afforded to Borrower with
respect to the Guaranteed Obligations pursuant to the antideficiency or other
laws of California limiting or discharging the Guaranty, including, without
limitation, Section 580a, 580b, 580d, or 726 of the California Code of Civil
Procedure, and (iii) all other rights and defenses available to Guarantor by
reason of Sections 2787 to 2855, inclusive, of the California Civil Code.
7. Subordination. Guarantor hereby subordinates any Indebtedness of
Borrower to Guarantor to the Guaranteed Obligations. Guarantor agrees that after
the occurrence and during the continuance of any Default or Event of Default the
Banks and the Agents shall be entitled to receive payment of all Guaranteed
Obligations before Guarantor receives payment of any Indebtedness of Borrower to
Guarantor. Any payments on such Indebtedness of Borrower to Guarantor made after
the occurrence and during the continuance of any Default or Event of Default, if
Collateral Agent so requests, shall be collected, enforced and received by
Guarantor as trustee for Collateral Agent and be paid over to Collateral Agent
on account of the Guaranteed Obligations, but without reducing or affecting in
any manner the liability of Guarantor under the other provisions of this
Guaranty. After the occurrence and during the continuance of any Default or
Event of Default, Collateral Agent is authorized and empowered (but without any
obligation to so do), in its discretion, (a) in the name of Guarantor, to
collect and enforce, and to submit claims in respect of, Indebtedness of
Borrower to Guarantor and to apply any amounts received thereon to the
Guaranteed Obligations, and (b) to require Guarantor (i) to collect and enforce,
and to submit claims in respect of, Indebtedness of Borrower to Guarantor, and
(ii) to pay any amounts received on such Indebtedness to Collateral Agent for
application to the Guaranteed Obligations.
8. General Pledge; Setoff.
(a) Pledge. In addition to all liens upon and rights of setoff
against the property of Guarantor given to any Agent or any Bank by law
or separate agreement to secure the liabilities of Guarantor hereunder,
to the extent permitted by law, Guarantor hereby grants to Collateral
Agent, for the benefit of the Banks and the Agents, a security interest
in all monies, deposit accounts, securities and other property of
Guarantor now or hereafter in the possession of or on deposit with any
Agent or any Bank, whether held in a general or special account or
deposit, or for safekeeping or otherwise; and the Agents and the Banks
shall have all rights and remedies of a secured party with respect to
such property.
<PAGE>
(b) Setoff. In addition to any rights and remedies of the
Agent and the Banks provided by law, the Agents and the Banks shall
have the right, without prior notice to Guarantor, any such notice
being expressly waived by Guarantor to the extent permitted by
applicable law, upon the occurrence and during the continuance of a
Default or an Event of Default, to set-off and apply against the
Guaranteed Obligations then due any amount owing from any Bank or any
Agent to Guarantor, including all deposits, accounts and moneys of
Guarantor then or thereafter maintained with any Bank or any Agent, at
or at any time after, the happening of any of the above mentioned
events.
(c) Nonwaiver. No security interest or right of setoff shall
be deemed to have been waived by any act or conduct on the part of any
Bank or any Agent or by any failure to exercise such right of setoff or
to enforce such security interest, or by any delay in so doing; and
every right of setoff and security interest shall continue in full
force and effect until such right of setoff or security interest is
specifically waived or released by an instrument in writing executed by
Collateral Agent.
9. Miscellaneous.
(a) Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or
upon Collateral Agent or Guarantor under this Guaranty shall be by
facsimile or in writing and faxed, mailed, telexed or delivered to each
party at its facsimile number or its address set forth below. All such
notices and communications: when sent by Federal Express or other
overnight service, shall be effective on the Business Day following the
deposit with such service; when mailed, first class postage prepaid and
addressed as aforesaid in the mails, shall be effective upon receipt;
when telexed, shall be effective upon receipt of answerback; when
delivered by hand, shall be effective upon delivery; and when faxed,
shall be effective upon confirmation of receipt.
Collateral Agent: Union Bank of California, N.A.
Northern California Commercial Banking Group
350 California Street, 10th Floor
San Francisco, CA 94104
Attention: William Hinch
Vice President
Telephone: (415) 705-7028
Facsimile: (415) 705-7111
Guarantor: [Rorke Data, Inc.][Rorke Data Europe Holding B.V.]
c/o Bell Microproducts, Inc.
1941 Ringwood Avenue
San Jose, CA 95131
Attn: Mr. Don W. Bell
President
Telephone: (408) 451-1635
Facsimile: (408) 451-1694
<PAGE>
(b) Waivers; Amendments. This Guaranty may not be amended or
modified, nor may any of its terms be waived, except by written
instruments signed by Guarantor and Collateral Agent. Each waiver or
consent under any provision hereof shall be effective only in the
specific instances and for the purpose for which given. No failure or
delay by any Agent or any Bank in exercising any right hereunder shall
operate as a waiver thereof or of any other right nor shall any single
or partial exercise of any such right preclude any other further
exercise thereof or of any other right. Unless otherwise specified in
any such waiver or consent, a waiver or consent given hereunder shall
be effective only in the specific instance and for the specific purpose
for which given.
(c) Successors and Assigns. This Guaranty shall be binding
upon and inure to the benefit of the Agents, the Banks and Guarantor
and their respective successors and assigns; provided, however, that
the Agents, the Banks and Guarantor may sell, assign and delegate their
respective rights and obligations hereunder only as permitted by the
Restated Credit Agreement. Collateral Agent may disclose this Guaranty
as provided in the Restated Credit Agreement.
(d) Partial Invalidity. If at any time any provision of this
Guaranty is or becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions of this Guaranty nor the
legality, validity or enforceability of such provision under the law of
any other jurisdiction shall in any way be affected or impaired
thereby.
(e) Cumulative Rights, etc. The rights, powers and remedies of
the Agents and the Banks under this Guaranty shall be in addition to
all rights, powers and remedies given to the Agents and the Banks by
virtue of any applicable Governmental Rule, the Restated Credit
Agreement, any other Credit Document or any other agreement, all of
which rights, powers, and remedies shall be cumulative and may be
exercised successively or concurrently without impairing the Agents' or
the Bank's rights hereunder.
(f) Payments Free of Taxes, Etc. All payments made by
Guarantor under this Guaranty shall be made by Guarantor free and clear
of and without deduction for any and all present and future taxes,
levies, charges, deductions and withholdings. In addition, Guarantor
shall pay upon demand any stamp or other taxes, levies or charges of
any jurisdiction with respect to the execution, delivery, registration,
performance and enforcement of this Guaranty. Upon request by
Collateral Agent, Guarantor shall furnish evidence satisfactory to
Collateral Agent that all requisite authorizations and approvals by,
and notices to and filings with, governmental authorities and
regulatory bodies have been obtained and made and that all requisite
taxes, levies and charges have been paid.
<PAGE>
(g) Governing Law and Jurisdiction. This Guaranty shall be
governed by and construed in accordance with the laws of the State of
California without reference to conflicts of law rules. Any legal
action or proceeding with respect to this Guaranty may be brought in
the courts of the State of California or of the United States for the
Northern District of California, and by execution and delivery of this
Guaranty, Guarantor consents, for itself and in respect of its
property, to the non-exclusive jurisdiction of those courts. Guarantor
irrevocably waives any objection, including any objection to the laying
of venue or based on the grounds of forum non conveniens, which it may
now or hereafter have to the bringing of any action or proceeding in
such jurisdiction in respect of this Guaranty. Guarantor waives
personal service of any summons, complaint or other process, which may
be made by any other means permitted by California law.
(h) Arbitration.
(i) This subparagraph 9(h) concerns the resolution of
any controversies or claims between or among Guarantor, any
Bank and any Agent, including but not limited to those that
arise from:
(A) This Guaranty or any other Guarantor
Document;
(B) Any violation of this Guaranty or any
other Guarantor Document; or
(C) Any claims for damages resulting from
any business conducted between Guarantor and any Bank
or any Agent, including claims for injury to persons,
property or business interests.
(ii) At the request of Guarantor, any Bank or any
Agent, any controversies or claims will be settled by
arbitration in accordance with the United States Arbitration
Act. The United States Arbitration Act will apply even though
this Agreement provides that it is governed by California law.
(iii) Arbitration proceedings will be administered by
the American Arbitration Association and will be subject to
its commercial rules of arbitration. The arbitration will be
conducted within the California county of San Francisco.
(iv) For purposes of the application of the statute
of limitation, the filing of an arbitration pursuant to this
subparagraph is the equivalent of the filing of a lawsuit, and
any claim or controversy which may be arbitrated under this
subparagraph is subject to any applicable statute of
limitations. The arbitrators will have the authority to decide
whether any such claim or controversy is barred by the statute
of limitations and if so to dismiss the arbitration on that
basis.
(v) If there is a dispute as to whether an issue is
arbitrable, the arbitrators will have the authority to resolve
any such dispute.
(vi) The decision that results from an arbitration
proceeding may be submitted to any authorized court of law to
be confirmed and enforced.
<PAGE>
(vii) The procedure described above will not apply if
the controversy or claim, at the time of the proposed
submission to arbitration arises from or relates to an
obligation to Bank secured by real property located in
California. If the obligation is secured by real property,
Guarantor, each Bank and each Agent must consent to submission
of the claim or controversy to arbitration. If all parties do
not consent to arbitration, the controversy or claim will be
settled as follows:
(A) Guarantor, the Banks and the Agents will
designate a referee (or a panel of referees) selected
under the auspices of the American Arbitration
Association in the same manner as arbitrators are
selected in Association-sponsored proceedings;
(B) The designated referee (or the panel of
referees) will be appointed by a court as provided in
California Code of Civil Procedure Section 638 and
the following related sections;
(C) The referee (or the presiding referee of
the panel) will be an active attorney or a retired
judge; and
(D) The award that results from the decision
of the referee (or the panel) will be entered as a
judgment in the court that appointed the referee, in
accordance with the provisions of California Code of
Civil Procedure Sections 644 and 645.
(viii) This subparagraph 9(h) does not limit the
right of Guarantor, any Bank or any Agent to:
(A) Exercise self-help remedies such as
setoff;
(B) Foreclose against or sell any real or
personal property collateral; or
(C) Take action in a court of law, before,
during or after the arbitration proceeding to obtain
an interim remedy or additional or supplementary
remedies.
(ix) The pursuit of or a decision in an action for
interim, additional or supplementary remedies, or the filing
of a court action, does not constitute a waiver of the right
of Guarantor, any Bank or any Agent, including the suing
party, to submit the controversy or claim to arbitration.
(i) JURY TRIAL. EACH OF GUARANTOR, THE BANKS AND THE AGENTS,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN
ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS GUARANTY OR ANY OTHER CREDIT DOCUMENT NOT RESOLVED PURSUANT TO
SUBPARAGRAPH 9(h) HEREOF.
<PAGE>
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed
as of the day and year first above written.
[RORKE DATA, INC.][RORKE DATA EUROPE HOLDING B.V.]
By:
Name:
Title:
By:
Name:
Title:
<PAGE>
APPENDIX 6
FORM OF RDI SECURITY AGREEMENT
RORKE DATA, INC.
SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated as of May [___], 2000, is executed by
RORKE DATA, INC., a Minnesota corporation ("RDI"), in favor of Collateral Agent
for the financial institutions which are from time to time parties to the
Restated Credit Agreement defined in Recital A below (collectively, the
"Banks").
RECITALS
A. Bell Microproducts Inc., a California corporation (the "Borrower"),
the Banks, California Bank & Trust (formerly known as Sumitomo Bank of
California) ("Administrative Agent"), and Union Bank of California (the
"Collateral Agent") are parties to a Third Amended and Restated Credit Agreement
dated as of November 12, 1998, as amended by (i) that certain First Amendment to
Third Amended and Restated Credit Agreement dated as of May 13, 1999, (ii) that
certain Second Amendment to Third Amended and Restated Credit Agreement dated as
of July 21, 1999, (iii) that certain Waiver and Third Amendment to Third Amended
and Restated Credit Agreement dated as of October 15, 1999, (iv) that certain
Fourth Amendment to Third Amended and Restated Credit Agreement dated as of
December 8, 1999, (v) that certain Fifth Amendment to Third Amended and Restated
Credit Agreement dated as of December 31, 1999, and (vi) that certain Consent
and Sixth Amendment to Third Amended and Restated Credit Agreement dated as of
May [__], 2000 (as amended, the "Restated Credit Agreement").
B. The Banks' obligations to continue to make the credit accommodations
available to Borrower as set forth in the Restated Credit Agreement is subject,
among other conditions, to receipt by Collateral Agent of this Security
Agreement, duly executed by RDI. RDI expects to derive substantial direct and
indirect benefit from the transactions contemplated by the Restated Credit
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, RDI hereby agrees with Collateral Agent, for the ratable benefit
of the Banks and the Agents, as follows:
1. Definitions and Interpretation. When used in this Security
Agreement, the following terms shall have the following respective meanings:
"Account Debtor" shall have the meaning given to that term in
subparagraph 3(g) hereof.
"Administrative Agent" shall have the meaning given to that term in
Recital A hereof.
"Banks" shall have the meaning given to that term in the introductory
paragraph hereof.
"Borrower" shall have the meaning given to that term in Recital A
hereof.
<PAGE>
"Collateral" shall have the meaning given to that term in paragraph 2
hereof.
"Depositary Bank" shall have the meaning given to that term in
subparagraph 4(e) hereof.
"Equipment" shall have the meaning given to that term in Attachment 1
hereto.
"Excluded Collateral" shall mean Collateral consisting of Equipment,
Inventory or other goods located at an address not specified in item 8 of
Attachment 2 hereto and having a value not to exceed $10,000 in the aggregate
for each such unspecified location or $100,000 in the aggregate for all such
unspecified locations.
"Intermediary" shall have the meaning given to that term in
Subparagraph 4(f) hereof.
"Inventory" shall have the meaning given to that term in Attachment 1
hereto.
"Obligations" shall mean and include all loans, advances, debts,
liabilities and obligations, howsoever arising, owed by Borrower to any Bank or
any Agent of every kind and description (whether or not evidenced by any note or
instrument and whether or not for the payment of money), direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising
pursuant to the terms of the Restated Credit Agreement or any of the other
Credit Documents, including without limitation all interest, fees, charges,
expenses, attorneys' fees and accountants' fees chargeable to Borrower or
payable by Borrower thereunder.
"Receivables" shall have the meaning given to that term in Attachment 1
hereto.
"Related Contracts" shall have the meaning given to that term in
Attachment 1 hereto.
"Restated Credit Agreement" shall have the meaning given to that term
in Recital A hereof.
"RDI" shall have the meaning given to that term in the introductory
paragraph hereof
"Security Agreement" shall mean this Security Agreement as further
amended, modified, supplemented or replaced from time to time.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of California from time to time.
Unless otherwise defined herein, all other capitalized terms used herein and
defined in the Restated Credit Agreement shall have the respective meanings
given to those terms in the Restated Credit Agreement, and all terms defined in
the UCC shall have the respective meanings given to those terms in the UCC. The
rules of construction set forth in Section I of the Restated Credit Agreement
shall, to the extent not inconsistent with the terms of this Security Agreement,
apply to this Security Agreement and are hereby incorporated by reference.
<PAGE>
2. Grant of Security Interest. As security for the Obligations, RDI
hereby pledges and assigns to Collateral Agent (for the ratable benefit of the
Banks and the Agents) and grants to Collateral Agent (for the ratable benefit of
the Banks and Agents) a security interest in all right, title and interest of
RDI in and to the property described in Attachment 1 hereto, whether now owned
or hereafter acquired (collectively and severally, the "Collateral"), which
Attachment 1 is incorporated herein by this reference.
3. Representations and Warranties. RDI represents and warrants to the
Banks and the Agents as follows:
(a) RDI is the legal and beneficial owner of the Collateral (or, in the
case of after-acquired Collateral, at the time RDI acquires rights in the
Collateral, will be the legal and beneficial owner thereof). No other Person has
(or, in the case of after-acquired Collateral, at the time RDI acquires rights
therein, will have) any right, title, claim or interest (by way of Lien,
purchase option or otherwise) in, against or to the Collateral, other than
Permitted Liens.
(b) Collateral Agent has (or in the case of after-acquired Collateral,
at the time RDI acquires rights therein, will have) a first priority perfected
security interest in the Collateral.
(c) All Equipment and Inventory (except for Excluded Collateral) are
(i) located at the locations indicated in item 8 of Attachment 2 hereto, (ii) in
transit to such locations or (iii) in transit to a third party purchaser which
will become obligated on a Receivable to RDI upon receipt. Except for Equipment
and Inventory referred to in clauses (ii) and (iii) of the preceding sentence,
RDI has exclusive possession and control of the Inventory and Equipment.
(d) All Inventory has been (or, in the case of hereafter produced
Inventory, will be) produced in compliance with all applicable Governmental
Rules, including the Fair Labor Standards Act (if applicable).
(e) RDI keeps all records concerning the Receivables and the originals
of all Related Contracts at its chief executive office located at the address
set forth in item 2 of Attachment 2 hereto.
(f) RDI has delivered to Collateral Agent, together with all necessary
stock powers, endorsements, assignments and other necessary instruments of
transfer, the original of each Receivable which is an instrument or chattel
paper having a face value in excess of $100,000 and the originals of all
certificated securities owed directly by RDI.
(g) Each Receivable is genuine and enforceable against the party
obligated to pay the same (an "Account Debtor") free from any right of
rescission, defense, setoff or discount.
(h) Each insurance policy maintained by RDI is validly existing and is
in full force and effect. RDI is not in default in any material respect under
the provisions of any insurance policy, and there are no facts which, with the
giving of notice or passage of time (or both), would result in such a default
under any provision of any such insurance policy.
<PAGE>
4. Covenants. RDI hereby agrees as follows:
(a) RDI, at RDI's expense, shall promptly procure, execute and deliver
to Collateral Agent all documents, instruments and agreements and perform all
acts which are necessary or desirable, or which Collateral Agent may reasonably
request, to establish, maintain, preserve, protect and perfect the Collateral,
the Lien granted to Collateral Agent therein and the first priority of such Lien
or to enable Collateral Agent to exercise and enforce its rights and remedies
hereunder with respect to any Collateral. Without limiting the generality of the
preceding sentence, RDI shall (i) procure, execute and deliver to Collateral
Agent all stock powers, endorsements, assignments, financing statements and
other instruments of transfer requested by Collateral Agent, (ii) deliver to
Collateral Agent promptly upon receipt the original of all Collateral which is
an instrument, document or chattel paper having a face value in excess of
$100,000 and letters of credit and certificated securities and (iii) take such
actions as may be necessary to perfect the Lien of Collateral Agent in any
Collateral consisting of investment property (including taking the actions
required by Subparagraph 4(f) hereof and, in those jurisdictions where
appropriate, causing such Liens to be recorded or registered in the books of any
financial intermediary or clearing corporation requested by Collateral Agent).
(b) RDI shall not use or permit any Collateral to be used in violation
of (i) any provision of the Restated Credit Agreement, this Security Agreement
or any other Credit Document, (ii) any applicable Governmental Rule where such
use might have a Material Adverse Effect, or (iii) any policy of insurance
covering the Collateral.
(c) RDI shall pay promptly when due all taxes and other Governmental
Charges, all Liens and all other charges now or hereafter imposed upon, relating
to or affecting any Collateral, except such Governmental Charges, Liens and
other charges as may in good faith be contested or disputed by appropriate
proceedings, provided that in each such case appropriate reserves are maintained
in accordance with GAAP.
(d) Without ninety (90) days' prior written notice to Collateral Agent,
RDI shall not (i) change RDI's name or place of business (or, if RDI has more
than one place of business, its chief executive office), or the office in which
RDI's records relating to Receivables or the originals of Related Contracts are
kept, (ii) keep Collateral consisting of chattel paper and documents at any
location other than its chief executive office set forth in item 2 of Attachment
2 hereto, or (iii) keep Collateral consisting of Equipment, Inventory or other
goods (except for Excluded Collateral) at any location other than the locations
set forth in item 8 of Attachment 2 hereto.
(e) For each deposit account maintained by RDI, RDI shall (i) execute
and deliver to the bank or other depository institution at which such deposit
account is maintained (the "Depositary Bank") a Notice of Security Interest in
the form of Attachment 3 hereto (or in any other form acceptable to Collateral
Agent in its sole discretion) and (ii) cause the Depositary Bank to execute and
deliver to Collateral Agent an Acknowledgment and Agreement in the form set
forth in such Notice of Security Interest. Without ten (10) days prior written
notice to Collateral Agent, RDI shall not establish any deposit account not set
forth in item 16 of Attachment 2 hereto.
<PAGE>
(f) For each securities account and commodity account maintained by
RDI, RDI shall (i) complete, execute and deliver to the bank, broker or other
Person at which such account is maintained (the "Intermediary") a Notice of
Security Interest in the form of Attachment 4 hereto and (ii) cause the
Intermediary to execute and deliver to Collateral Agent an Acknowledgment and
Agreement in the form set forth in such Notice of Security Interest (or in any
other form acceptable to Collateral Agent in its sole discretion). Without
thirty (30) days prior written notice to Collateral Agent, RDI shall not
establish any securities account or commodity account not set forth in item 14
of Attachment 2 hereto.
(g) RDI shall deposit, or cause to be deposited, all remittances,
checks and other funds (in whatever form) received with respect to Receivables
to a deposit account for which RDI has complied with subparagraph 4(e) above and
in which Collateral Agent has a first priority perfected security interest,
subject only to the banker's lien of the Depositary Bank covering its customary
account maintenance charges and fees.
(h) RDI shall appear in and defend any action or proceeding which may
affect its title to or Collateral Agent's interest in the Collateral.
(i) If Collateral Agent gives value to enable RDI to acquire rights in
or the use of any Collateral, RDI shall use such value for such purpose.
(j) RDI shall keep separate, accurate and complete records of the
Collateral and shall provide Collateral Agent with such records and such other
reports and information relating to the Collateral as Collateral Agent may
reasonably request from time to time.
(k) RDI shall not surrender or lose possession of (other than to
Collateral Agent), sell, encumber, lease, rent, option, or otherwise dispose of
or transfer any Collateral or right or interest therein except as permitted in
the Restated Credit Agreement, and notwithstanding any provision of the Restated
Credit Agreement, RDI shall keep the Collateral free of all Liens except
Permitted Liens.
(l) RDI shall type, print or stamp conspicuously on the face of all
original copies of all Collateral consisting of chattel paper and documents not
in the possession of Collateral Agent a legend satisfactory to Collateral Agent
indicating that such chattel paper is subject to the security interest granted
hereby.
(m) RDI shall collect, enforce and receive delivery of the Receivables
in accordance with past practice unless otherwise notified by Collateral Agent
after the occurrence and during the continuance of an Event of Default.
(n) RDI shall comply with all material Requirements of Law applicable
to RDI which relate to the production, possession, operation, maintenance and
control of the Collateral (including, without limitation, the Fair Labor
Standards Act).
(o) RDI shall (i) maintain and keep in force insurance of the types and
in amounts customarily carried from time to time during the term of this
Security Agreement in its lines of business, including fire, public liability,
property damage and worker's compensation, such insurance to be carried with
companies and in amounts satisfactory to Collateral Agent, (ii) deliver to
Collateral Agent from time to time, as Collateral Agent may request, schedules
setting forth all insurance then in effect, and (iii) deliver to Collateral
Agent copies of each policy of insurance which replaces, or evidences the
<PAGE>
renewal of, each existing policy of insurance at least fifteen (15) days prior
to the expiration of such policy. Collateral Agent shall be named as additional
insured or additional loss payee, as appropriate, on all liability and property
insurance of RDI and such policies shall contain such additional endorsements as
shall be required by Collateral Agent, including the endorsements specified in
Attachment 5 hereto. Prior to the occurrence and the continuance of an Event of
Default, all proceeds of any property insurance paid as a result of any event or
occurrence shall be paid to RDI. All proceeds of any property insurance paid
after the occurrence and during the continuance of an Event of Default shall be
paid to Collateral Agent to be held as Collateral and applied as provided in the
Restated Credit Agreement or, at the election of the Required Banks, returned to
RDI.
5. Authorized Action by Collateral Agent. RDI hereby irrevocably
appoints Collateral Agent as its attorney-in-fact and agrees that Collateral
Agent may perform (but Collateral Agent shall not be obligated to and shall
incur no liability to RDI or any third party for failure so to do) any act which
RDI is obligated by this Security Agreement to perform, and to exercise such
rights and powers as RDI might exercise with respect to the Collateral,
including, without limitation, the right to (a) collect by legal proceedings or
otherwise and endorse, receive and receipt for all dividends, interest,
payments, proceeds and other sums and property now or hereafter payable on or on
account of the Collateral; (b) enter into any extension, reorganization,
deposit, merger, consolidation or other agreement pertaining to, or deposit,
surrender, accept, hold or apply other property in exchange for the Collateral;
(c) insure, process, preserve and enforce the Collateral; (d) make any
compromise or settlement, and take any action it deems advisable, with respect
to the Collateral; (e) pay any Indebtedness of RDI relating to the Collateral;
and (f) execute UCC financing statements and other documents, instruments and
agreements required hereunder; provided, however, that Collateral Agent may
exercise such powers only after the occurrence and during the continuance of an
Event of Default. RDI agrees to reimburse Collateral Agent upon demand for all
reasonable costs and expenses, including attorneys' fees, Collateral Agent may
incur while acting as RDI's attorney-in-fact hereunder, all of which costs and
expenses are included in the Obligations. RDI agrees that such care as
Collateral Agent gives to the safekeeping of its own property of like kind shall
constitute reasonable care of the Collateral when in Collateral Agent's
possession; provided, however, that Collateral Agent shall not be required to
make any presentment, demand or protest, or give any notice and need not take
any action to preserve any rights against any prior party or any other Person in
connection with the Obligations or with respect to the Collateral.
6. Default and Remedies. RDI shall be deemed in default under this
Security Agreement upon the occurrence and during the continuance of an Event of
Default, as that term is defined in the Restated Credit Agreement. In addition
to all other rights and remedies granted to Collateral Agent by this Security
Agreement, the Restated Credit Agreement, the other Credit Documents, the UCC
and other applicable Governmental Rules, Collateral Agent may, upon the
occurrence and during the continuance of any Event of Default, exercise any one
or more of the following rights and remedies: (a) collect, receive, appropriate
or realize upon the Collateral or otherwise foreclose or enforce Collateral
Agent's security interests in any or all Collateral in any manner permitted by
applicable Governmental Rules or in this Security Agreement; (b) notify any or
all Account Debtors to make payments on Receivables directly to Collateral
Agent; (c) direct any Depositary Bank or Intermediary to liquidate the
account(s) maintained by it, pay all amounts payable in connection therewith to
Collateral Agent and/or deliver any proceeds thereof to Collateral Agent; (d)
sell or otherwise dispose of any or all Collateral at one or more public or
private sales, whether or not such Collateral is present at the place of sale,
for cash or credit or future delivery, on such terms and in such manner as
Collateral Agent may determine; (e) require RDI to assemble the Collateral and
make it available to Collateral Agent at a place to be designated by Collateral
Agent; (f) enter onto any property where any Collateral is located and take
<PAGE>
possession thereof with or without judicial process; and (g) prior to the
disposition of the Collateral, store, process, repair or recondition any
Collateral consisting of goods, perform any obligations and enforce any rights
of RDI under any Related Contracts or otherwise prepare and preserve Collateral
for disposition in any manner and to the extent Collateral Agent deems
appropriate. In furtherance of Collateral Agent's rights hereunder, RDI hereby
grants to Collateral Agent an irrevocable, non-exclusive license (exercisable
without royalty or other payment by Collateral Agent) to use, license or
sublicense any patent, trademark, tradename, copyright or other intellectual
property in which RDI now or hereafter has any right, title or interest,
together with the right of access to all media in which any of the foregoing may
be recorded or stored. In any case where notice of any sale or disposition of
any Collateral is required, RDI hereby agrees that seven (7) days notice of such
sale or disposition is reasonable.
7. Miscellaneous.
(a) Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or
upon Collateral Agent or RDI under this Security Agreement shall be by
facsimile or in writing and faxed, mailed, telexed or delivered to each
party at its facsimile number or its address set forth below. All such
notices and communications: when sent by Federal Express or other
overnight service, shall be effective on the Business Day following the
deposit with such service; when mailed, first class postage prepaid and
addressed as aforesaid in the mails, shall be effective upon receipt;
when telexed, shall be effective upon receipt of answerback; when
delivered by hand, shall be effective upon delivery; and when faxed,
shall be effective upon confirmation of receipt.
Collateral Agent: Union Bank of California, N.A.
Northern California Commercial Banking Group
350 California Street, 10th Floor
San Francisco, CA 94104
Attention: Bill Hinch
Vice President
Telephone: (415) 705-7028
Facsimile: (415) 705-7111
<PAGE>
RDI: Rorke Data, Inc.
c/o Bell Microproducts, Inc.
1941 Ringwood Avenue
San Jose, CA 95131
Attn: Mr. Don W. Bell
President
Telephone: (408) 451-1635
Facsimile: (408) 451-1694
(b) Waivers; Amendments. Any term, covenant, agreement or condition of
this Security Agreement may be amended or waived only as provided in the
Restated Credit Agreement. No failure or delay by any Agent or any Bank in
exercising any right hereunder shall operate as a waiver thereof or of any other
right nor shall any single or partial exercise of any such right preclude any
other further exercise thereof or of any other right. Unless otherwise specified
in any such waiver or consent, a waiver or consent given hereunder shall be
effective only in the specific instance and for the specific purpose for which
given.
(c) Successors and Assigns. This Security Agreement shall be binding
upon and inure to the benefit of the Agents, the Banks and RDI and their
respective successors and assigns; provided, however, that the Agents, the Banks
and RDI may sell, assign and delegate their respective rights and obligations
hereunder only as permitted by the Restated Credit Agreement. Collateral Agent
may disclose this Security Agreement as provided in the Restated Credit
Agreement.
(d) Partial Invalidity. If at any time any provision of this Security
Agreement is or becomes illegal, invalid or unenforceable in any respect under
the law or any jurisdiction, neither the legality, validity or enforceability of
the remaining provisions of this Security Agreement nor the legality, validity
or enforceability of such provision under the law of any other jurisdiction
shall in any way be affected or impaired thereby.
(e) Cumulative Rights, Etc. The rights, powers and remedies of the
Agents and the Banks under this Security Agreement shall be in addition to all
rights, powers and remedies given to the Agents and the Banks by virtue of any
applicable Governmental Rule, the Restated Credit Agreement, any other Credit
Document or any other agreement, all of which rights, powers, and remedies shall
be cumulative and may be exercised successively or concurrently without
impairing Collateral Agent's rights hereunder. RDI waives any right of
marshalling or to require any Agent or any Bank to proceed against any Person or
to exhaust any Collateral or to pursue any remedy in such Agent's or such Bank's
power.
(f) Payments Free of Taxes, Etc. All payments made by RDI under this
Security Agreement shall be made by RDI free and clear of and without deduction
for any and all present and future taxes, levies, charges, deductions and
withholdings. In addition, RDI shall pay upon demand any stamp or other taxes,
levies or charges of any jurisdiction with respect to the execution, delivery,
registration, performance and enforcement of this Security Agreement. Upon
request by Collateral Agent, RDI shall furnish evidence satisfactory to
<PAGE>
Collateral Agent that all requisite authorizations and approvals by, and notices
to and filings with, governmental authorities and regulatory bodies have been
obtained and made and that all requisite taxes, levies and charges have been
paid.
(g) RDI's Continuing Liability. Notwithstanding any provision of this
Security Agreement or any other Credit Document or any exercise by any Agent of
any of its rights hereunder or thereunder (including, without limitation, any
right to collect or enforce any Collateral), (i) RDI shall remain liable to
perform its obligations and duties in connection with the Collateral (including,
without limitation, the Related Contracts and all other agreements relating to
the Collateral) and (ii) neither any Agent nor any Bank shall assume any
liability to perform such obligations and duties or to enforce any of RDI's
rights in connection with the Collateral (including, without limitation, the
Related Contracts and all other agreements relating to the Collateral).
(h) Governing Law and Jurisdiction. This Security Agreement shall be
governed by and construed in accordance with the laws of the State of California
without reference to conflicts of law rules. Any legal action or proceeding with
respect to this Security Agreement may be brought in the courts of the State of
California or of the United States for the Northern District of California, and
by execution and delivery of this Security Agreement, RDI consents, for itself
and in respect of its property, to the non-exclusive jurisdiction of those
courts. RDI irrevocably waives any objection, including any objection to the
laying of venue or based on the grounds of forum non conveniens, which it may
now or hereafter have to the bringing of any action or proceeding in such
jurisdiction in respect of this Security Agreement. RDI waives personal service
of any summons, complaint or other process, which may be made by any other means
permitted by California law.
(i) Arbitration.
(i) This subparagraph 9(i) concerns the resolution of any
controversies or claims between or among RDI, any Bank and any Agent,
including but not limited to those that arise from:
(A) This Security Agreement or any other Credit
Document to which RDI is a party;
(B) Any violation of this Security Agreement or any
other Credit Document to which RDI is a party; or
(C) Any claims for damages resulting from any
business conducted between RDI and any Bank or any Agent,
including claims for injury to persons, property or business
interests.
(ii) At the request of RDI, any Bank or any Agent, any
controversies or claims will be settled by arbitration in accordance
with the United States Arbitration Act. The United States Arbitration
Act will apply even though this Agreement provides that it is governed
by California law.
<PAGE>
(iii) Arbitration proceedings will be administered by the
American Arbitration Association and will be subject to its commercial
rules of arbitration. The arbitration will be conducted within the
California county of San Francisco.
(iv) For purposes of the application of the statute of
limitation, the filing of an arbitration pursuant to this subparagraph
is the equivalent of the filing of a lawsuit, and any claim or
controversy which may be arbitrated under this subparagraph is subject
to any applicable statute of limitations. The arbitrators will have the
authority to decide whether any such claim or controversy is barred by
the statute of limitations and if so to dismiss the arbitration on that
basis.
(v) If there is a dispute as to whether an issue is
arbitrable, the arbitrators will have the authority to resolve any such
dispute.
(vi) The decision that results from an arbitration proceeding
may be submitted to any authorized court of law to be confirmed and
enforced.
(vii) The procedure described above will not apply if the
controversy or claim, at the time of the proposed submission to
arbitration arises from or relates to an obligation to Bank secured by
real property located in California. If the obligation is secured by
real property, RDI, each Bank and Collateral Agent must consent to
submission of the claim or controversy to arbitration. If all parties
do not consent to arbitration, the controversy or claim will be settled
as follows:
(A) RDI, the Banks and the Agents will designate a
referee (or a panel of referees) selected under the auspices
of the American Arbitration Association in the same manner as
arbitrators are selected in Association-sponsored proceedings;
(B) The designated referee (or the panel of referees)
will be appointed by a court as provided in California Code of
Civil Procedure Section 638 and the following related
sections;
(C) The referee (or the presiding referee of the
panel) will be an active attorney or a retired judge; and
(D) The award that results from the decision of the
referee (or the panel) will be entered as a judgment in the
court that appointed the referee, in accordance with the
provisions of California Code of Civil Procedure Sections 644
and 645.
(viii) This subparagraph 9(i) does not limit the right of RDI,
any Bank or the Agents to:
(A) Exercise self-help remedies such as setoff;
(B) Foreclose against or sell any real or personal
property collateral; or
<PAGE>
(C) Take action in a court of law, before, during or
after the arbitration proceeding to obtain an interim remedy
or additional or supplementary remedies.
(ix) The pursuit of or a decision in an action for interim,
additional or supplementary remedies, or the filing of a court action,
does not constitute a waiver of the right of RDI, any Bank or any
Agent, including the suing party, to submit the controversy or claim to
arbitration.
(j) JURY TRIAL. EACH OF RDI, THE BANKS AND ADMINISTRATIVE AGENT, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT NOT RESOLVED
PURSUANT TO SUBPARAGRAPH 9(i) HEREOF.
<PAGE>
IN WITNESS WHEREOF, RDI has caused this Security Agreement to be
executed as of the day and year first above written.
RORKE DATA, INC.
By:
Name:
Title:
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
as Collateral Agent
By:
Name:
Title:
<PAGE>
ATTACHMENT 1
TO SECURITY AGREEMENT
All right, title and interest of RDI, whether now owned or hereafter
acquired, in and to the following:
(a) All equipment and fixtures (including, without limitation,
manufacturing equipment, furniture, vehicles and other machinery and office
equipment), together with all additions and accessions thereto and replacements
therefor (collectively, the "Equipment");
(b) All inventory (including, without limitation, (i) all computers,
semiconductor devices, integrated circuits, disc drives, computer peripheral
equipment, monitors, other computer-related equipment, other electronic
equipment, and all other raw materials, work in process and finished goods and
(ii) all such goods which are returned to or repossessed by RDI), together with
all additions and accessions thereto, replacements therefor, products thereof
and documents therefor (collectively, the "Inventory");
(c) All accounts, chattel paper, instruments, deposit accounts and
other rights to the payment of money (including, without limitation, general
intangibles and contract rights) (collectively, the "Receivables") and all
contracts, security agreements, leases, guaranties and other agreements
evidencing, securing or otherwise relating to the Receivables (collectively, the
"Related Contracts");
(d) All certificated and uncertificated securities, security
entitlements, securities accounts, commodity contracts, commodity accounts and
other investment property;
(e) All other general intangibles and contract rights not otherwise
described above (including, without limitation, (i) customer and supplier lists
and contracts, books and records, insurance policies, tax refunds, contracts for
the purchase of real or personal property; (ii) all patents, copyrights,
trademarks, tradenames and service marks, (iii) all licenses to use,
applications for, and other rights to, such patents, copyrights, trademarks,
tradenames and service marks, and (iv) all goodwill of RDI);
(f) All other property not otherwise described above (including,
without limitation, all money, letters of credit, documents and goods); and
(g) All proceeds of the foregoing (including, without limitation,
whatever is receivable or received when Collateral or proceeds is sold,
collected, exchanged, returned, substituted or otherwise disposed of, whether
such disposition is voluntary or involuntary, including rights to payment and
return premiums and insurance proceeds under insurance with respect to any
Collateral, and all rights to payment with respect to any cause of action
affecting or relating to the Collateral).
<PAGE>
ATTACHMENT 2
TO SECURITY AGREEMENT
RDI PROFILE
RORKE DATA, INC.
("RDI")
1. The current legal name of RDI is Rorke Data, Inc., a Minnesota
corporation.
2. RDI's chief executive office is located at [______________________].
3. RDI was organized on [___________________]. Since its organization,
RDI has had no other legal name (other than its current legal name) except for
the following (provide name and date of change):
Prior Name Date Name
Changed
----------------------- -------------------
4. RDI does not do business under any trade name except for the
following (provide name and indicate whether registered):
Trade Name Registered?
----------------------- -------------------
5. Since RDI's organization, no other corporation has been
merged into RDI except for the following (provide names, dates and brief
description of transactions):
Name of Date of Description of
Corporation Merger Transaction
----------------------- ------------------- ----------------------
<PAGE>
6. RDI has not acquired any of its assets in a bulk sale or any other
transaction not in the ordinary course of business of the seller except for the
following (provide description of assets, date and description of transaction
and name of seller):
Description of Date of Description of Seller
Assets Acquisition Transaction
-------------- ----------- -------------- ------
7. The following is a complete list of all other jurisdictions in which
RDI is qualified to do business:
Jurisdiction
8. The following is a complete list of all offices and other places of
business at which RDI currently conducts or has within the last four months
conducted business (provide address, owner of site and brief description of
assets located there):
Address Brief Description
Owner of Site of Assets
------------------- ------------------- -----------------
9. The following is a complete list of all persons and entities (other
than RDI) who at any time have possession of any assets of RDI (provide name,
address where located and description of assets located there):
Person or Address Brief Description of Assets
Entity
--------------- ------------ -----------------------------
None
Of the persons and entities listed above in this item 9;
a. The following persons and entities are warehouses which issue
warehouse receipts:
Person or
Entity
-----------------------------
None
<PAGE>
b. The following persons and entities process or finish inventory or
other goods for RDI:
Person or
Entity
-----------------------------
c. The following persons and entities hold inventory or other goods on
consignment for RDI:
Person or
Entity
-----------------------------
d. The following other persons and entities have possession of assets
of RDI for the purposes indicated:
Person or Purpose
Entity
--------------- --------------
10. The following is a complete list of all motor vehicles owned by RDI
(describe each vehicle by make, model and year and indicate for each the state
in which registered and the state in which based):
State of State in which
Vehicle Registration Based
--------------- -------------------- ------------------------
<PAGE>
11. The following is a complete list of all aircraft and boats and all
other inventory, equipment and other goods of RDI which are subject to any
certificate of title or other registration statute of the United States, any
state or any other jurisdiction (provide description of covered goods and
indicate registration system and jurisdiction):
Registration
Goods System Jurisdiction
------------ ------------------- -----------------
12. The following is a complete list of all patents, copyrights,
trademarks, tradenames and service marks registered in the name of RDI:
a. Patents Registration No.
--------------------------- --------------------
b. Copyrights Registration No.
--------------------------- --------------------
c. Trademarks,
Trade Names and
Service Marks Registration No.
--------------------------- --------------------
13. The following is a complete list of all subsidiaries of RDI
(provide name of subsidiary, jurisdiction of incorporation, outstanding shares
and shares owned by RDI):
Subsidiary Jurisdiction Shares Shares Owned
Outstanding by RDI
------------ -------------- ------------- --------------
14. The following is a complete list of all securities accounts
maintained by RDI (provide name and address of securities intermediary at which
maintained, type of account and account number):
Securities Intermediary Type of Account Number
Intermediary Address Account
------------ ------------ ------- --------------
------------ ------------ ------- --------------
------------ ------------ ------- --------------
------------ ------------ ------- --------------
15. The following is a complete list of all other stock (other than the
stock of subsidiaries described in item 13 above or held indirectly through
securities accounts described in item 14 above), bonds, debentures, notes and
other securities owned by RDI which have a value (higher of cost or market
value) of $100 or more (provide name of issuer, a description of security and
value):
<PAGE>
Description of
Issuer Security Value
--------------- ------------------ --------------
--------------- ------------------ --------------
16. The following is a complete list of all notes payable to RDI not
otherwise listed in item 14 above (provide name of obligor, date, original
principal amount and current principal balance):
Obligor Date Original Current
Amount Balance
--------- --------------- ------------ -------------
17. The following is a complete list of all bank accounts maintained by
RDI (provide name and address of depository bank, type of account and account
number):
Depository Bank Type of Account
Bank Address Account Number
------------ ------------- ------------ ----------
18. Does RDI regularly receive letters of credit from customers to
secure payments of sums owed to RDI?
Yes ____. No ____.
19. Does RDI regularly have accounts receivable due from, or
contracts with, the United States government or any agency or department
thereof?
Yes ____. No ____.
If yes, indicate the percentage of RDI's total outstanding accounts
receivable that are due from the United States government and agencies and
departments thereof: ________%
20. Does RDI regularly receive advance deposits from customers for
goods not yet delivered to such customers?
Yes ____. No ____.
21. Does RDI regularly import goods from outside the United States? No
<PAGE>
22. The following is a complete list of all third parties who perform
data processing services for RDI or maintain records with respect to RDI's
accounts receivable (provide name and address of third party and describe
services performed and/or records maintained):
Name Address Description of Services
and/or Records
------------------- -------------------- -------------------------
23. The following is a complete list of all data processing equipment
of RDI which is leased (provide description of equipment and name and address of
lessor):
Lessor
Description of Equipment Lessor Address
----------------------------------- ----------------- ------------------------
24. The following is a complete list of all data processing equipment
of RDI which is subject to security interests of persons other than Bank
(provide description of equipment and name and address of secured party):
Description of Equipment Secured Party Secured Party
Address
--------------------------- ----------------- ---------------------
25. The most recent federal income tax returns of RDI that have been
audited by the IRS are:
26. Neither RDI nor any of its property is subject to any tax
assessments which are currently outstanding and unpaid except for the following
(provide name of assessing authority and amount and description of assessment):
Assessing Authority Amount Description
------------------------------ --------------- ----------------------
27. Neither RDI nor any of its property is subject to any judgment
lien, attachment, assessment (other than any tax assessments set forth in item
25 above) or any other similar process which is currently outstanding and unpaid
except for the following (provide name of party asserting lien, etc., amount and
description of lien, etc.):
Asserting Authority Amount Description
----------------------- ----------------- ------------------------
28. The following is a complete list of all pending and threatened
litigation or claims involving amounts claimed against RDI in excess of
$1,000,000 (provide name of claimant, amount of claim and brief description of
claim):
Claimant Amount Description
----------------------- ------------------ ----------------------
<PAGE>
ATTACHMENT 3
TO SECURITY AGREEMENT
NOTICE OF SECURITY INTEREST
IN
DEPOSIT ACCOUNT
___________ __, [19][20]_
[Name of Depositary Bank]
[Address of Depositary Bank]
---------------------------
---------------------------
RORKE DATA, INC., a Minnesota corporation ("RDI") and UNION BANK OF
CALIFORNIA, N.A., a national banking association, acting as collateral agent for
certain financial institutions (in such capacity, "Collateral Agent"), under
that certain Security Agreement dated as of May [___], 2000 (the "Security
Agreement"), hereby notify you that RDI has granted to Collateral Agent a
security interest in all deposit accounts maintained by RDI with you including,
without limitation, the deposit accounts described below, and that this security
interest supercedes any previous security interest granted to Administrative
Agent in any deposit accounts maintained by the Borrower with you:
Account Depositor's Account
Number Name Type
------------------------- ---------------------- ----------------
------------------------- ---------------------- ----------------
------------------------- ---------------------- ----------------
------------------------- ---------------------- ----------------
RDI and Collateral Agent authorize you to continue to allow RDI to make deposits
to, draw checks upon and otherwise withdraw funds from such deposit accounts
(the "Deposit Accounts") without the consent of Collateral Agent until
Collateral Agent shall instruct you otherwise.
<PAGE>
RDI has irrevocably authorized Collateral Agent to inform you when an
Event of Default (as defined in the Restated Credit Agreement) has occurred and
is continuing and at such time instruct you to cease to permit any further
payments or withdrawals from the Deposit Accounts by RDI and/or to pay any or
all amounts in the Deposit Accounts to Collateral Agent. RDI irrevocably
authorizes and directs you to comply with all such instructions received by you
from Collateral Agent without further inquiry on your part and hereby agrees to
indemnify and hold harmless you and your officers, directors and employees from
and for any compliance by you with such instructions.
RORKE DATA, INC.
By:
Name:
Title:
UNION BANK OF CALIFORNIA BANK, N.A.
as Collateral Agent
By:
Name:
Title:
<PAGE>
ACKNOWLEDGEMENT AND AGREEMENT
OF DEPOSITARY BANK
The undersigned depositary bank hereby acknowledges receipt of the
above notice and agrees with RDI and Collateral Agent to comply with any
instruction it may receive from Collateral Agent in accordance therewith. The
undersigned confirms to Collateral Agent that the information set forth above
regarding the Deposit Accounts is accurate, that such Deposit Accounts are
currently open and that the undersigned has no prior notice of any other
security interest, lien or interest in such Deposit Accounts. The undersigned
waives any right of setoff except for its right or recoupment for returned
items.
-------------------------------------
By:
Name:
Title:
<PAGE>
ATTACHMENT 4
TO SECURITY AGREEMENT
NOTICE OF SECURITY INTEREST
IN
[SECURITIES][COMMODITY] ACCOUNT
__________ __, [19][20]__
[Name of Intermediary]
[Address of Intermediary]
---------------------------
---------------------------
RORKE DATA, INC., a Minnesota corporation ("RDI") and UNION BANK OF
CALIFORNIA, N.A., a national banking association, acting as collateral agent for
certain financial institutions (in such capacity, "Collateral Agent"), under
that certain Security Agreement dated as of May [___], 2000 (the "Security
Agreement"), hereby notify you that RDI has granted to Collateral Agent a
security interest in all [securities][commodity] accounts maintained by RDI with
you including, without limitation, the accounts described below:
Account Account Holder's Account
Number Name Type
---------------- ---------------- --------------
Until Collateral Agent shall instruct you otherwise pursuant to the following
paragraph, RDI and Collateral Agent authorize you, without the consent of
Collateral Agent, to continue to comply with all directions of RDI regarding the
purchase, sale, transfer or redemption of all securities, security entitlements,
other investment property and other financial assets for and in such accounts
(the "Accounts").
RDI has authorized Collateral Agent to inform you when an Event of
Default (as defined in the Restated Credit Agreement) has occurred and is
continuing and at such time direct you to cease to comply with any further
directions of RDI with respect to the Accounts. After your receipt of any such
notice, RDI authorizes and directs you, without the consent of RDI or further
inquiry on your part, to comply with all directions of Collateral Agent
regarding the Accounts, including, without limitation, any direction to (a)
purchase, sell, transfer or redeem any or of all securities, security
entitlements, other investment property or other financial assets for and in the
Accounts, (b) withdraw any or all funds from the Accounts and pay such funds to
<PAGE>
Collateral Agent or any person designated by Collateral Agent or (c) transfer
any or all of the Accounts to the name of Collateral Agent or any person
designated by Collateral Agent. RDI hereby agrees to indemnify and hold harmless
you and your officers, directors and employees from and for any compliance by
you with such directions of Collateral Agent.
RORKE DATA, INC.
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A. as Collateral Agent
By:
Name:
Title:
<PAGE>
ACKNOWLEDGEMENT AND AGREEMENT
OF INTERMEDIARY
The undersigned institution hereby acknowledges receipt of the above
notice and agrees with RDI and Collateral Agent to comply with any direction it
may receive from Collateral Agent in accordance therewith without the consent of
RDI or further inquiry. The undersigned confirms to Collateral Agent that the
information set forth above regarding the Accounts is accurate, that such
Accounts are currently open and that the undersigned has no prior notice of any
other security interest, lien or interest in such Accounts. The undersigned
agrees that any lien or right of setoff it may have in or against the accounts
is subordinate to the security interest of Collateral Agent therein.
----------------------------------
By:
Name:
Title:
<PAGE>
ATTACHMENT 5
TO SECURITY AGREEMENT
INSURANCE ENDORSEMENTS
1. Property Insurance. Each of the property insurance policies of RDI
shall contain substantially the following endorsements:
(a) UNION BANK OF CALIFORNIA, N.A. as collateral agent
("Collateral Agent"), shall be named as additional loss payee.
(b) In respect of the interests of Collateral Agent in the
policies, the insurance shall not be invalidated by any action or by
inaction of RDI or by any Person having temporary possession of the
property covered thereby (the "Property") while under contract with RDI
to perform maintenance, repair, alteration or similar work on the
Property, and shall insure the interests of Collateral Agent regardless
of any breach or violation of any warranty, declaration or condition
contained in the insurance policy by RDI or Collateral Agent or any
other additional insured (other than by such additional insured, as to
such additional insured) or by any Person having temporary possession
of the Property while under contract with RDI to perform maintenance,
repair, alteration or similar work on the Property.
(c) If the insurance policy is cancelled for any reason
whatsoever, or substantial change is made in the coverage that affects
the interests of Collateral Agent, or if the insurance coverage is
allowed to lapse for non-payment of premium, such cancellation, change
or lapse shall not be effective as to Collateral Agent for 30 days (or
10 days in the case of non-payment of premium) after receipt by
Collateral Agent of written notice from the insurers of such
cancellation, change or lapse.
(d) Neither Collateral Agent nor any Bank shall have any
obligation or liability for premiums, commissions, assessments, or
calls in connection with the insurance.
(e) The insurer shall waive any rights of set-off or
counterclaim or any other deduction, whether by attachment or
otherwise, that it may have against Collateral Agent and each Bank.
(f) The insurance shall be primary without right of
contribution from any other insurance that may be carried by Collateral
Agent or any of the Banks with respect to its or their interest in the
Property.
(g) The insurer shall waive any right of subrogation against
Collateral Agent and each Bank.
(h) All provisions of the insurance, except the limits of
liability, shall operate in the same manner as if there were a separate
policy covering each insured party.
<PAGE>
2. Liability Insurance. Each of the liability insurance policies of RDI
shall contain substantially the following endorsements:
(a) Collateral Agent shall be named as additional insured.
(b) In respect of the interests of Collateral Agent in the
policies, the insurance shall not be invalidated by any action or by
inaction of RDI or by any Person having temporary possession of the
property covered thereby (the "Property") while under contract with RDI
to perform maintenance, repair, alteration or similar work on the
Property, and shall insure the interests of Collateral Agent regardless
of any breach or violation of any warranty, declaration or condition
contained in the insurance policy by RDI or Collateral Agent or any
other additional insured (other than by such additional insured, as to
such additional insured) or by any Person having temporary possession
of the Property while under contract with RDI to perform maintenance,
repair, alteration or similar work on the Property.
(c) If the insurance policy is cancelled for any reason
whatsoever, or substantial change is made in the coverage that affects
the interests of Collateral Agent, or if the insurance coverage is
allowed to lapse for non-payment of premium, such cancellation, change
or lapse shall not be effective as to Collateral Agent for 30 days (or
10 days in the case of non-payment of premium) after receipt by
Collateral Agent of written notice from the insurer of such
cancellation, change or lapse.
(d) Neither Collateral Agent nor any Bank shall have any
obligation or liability for premiums, commissions, assessments, or
calls in connection with the insurance.
(e) The insurer shall waive any rights of set-off or
counterclaim or any other deduction, whether by attachment or
otherwise, that it may have against Collateral Agent and each Bank.
(f) The insurance shall be primary without right of
contribution from any other insurance that may be carried by any Agent
or any of the Banks with respect to their interests in the Property.
(g) The insurer shall waive any right of subrogation against
Collateral Agent and each Bank.
(f) All provisions of the insurance, except the limits of
liability, shall operate in the same manner as if
there were a separate policy covering each insured
party.
<PAGE>
APPENDIX 7
CORPORATE DOCUMENTS.
(1) The Certificate of Incorporation of RDI, certified as of a
recent date prior to the Sixth Amendment Effective Date by the
Secretary of State of Minnesota;
(2) A Certificate of Good Standing for RDI, certified as of a
recent date prior to the Sixth Amendment Effective Date by the
Secretary of State of Minnesota;
(3) A certificate of the Secretary of RDI, dated the Sixth
Amendment Effective Date, certifying (a) that the Certificate of
Incorporation of RDI, in the form certified by the Secretary of State
of Minnesota and delivered to Administrative pursuant to item (1)
hereof, is in full force and effect and has not been amended,
supplemented, revoked or repealed since the date of such certification;
(b) that attached thereto is a true and correct copy of the Articles of
Incorporation of RDI as in effect on the Sixth Amendment Effective
Date; (c) that attached thereto are true and correct copies of
resolutions duly adopted by the Board of Directors of RDI and
continuing in effect, which authorize the execution, delivery and
performance by RDI of the Credit Documents executed or to be executed
by RDI and the consummation of the transactions contemplated hereby and
thereby; and (d) that there are no proceedings for the dissolution or
liquidation of RDI (commenced or threatened); and
(4) A certificate of the Secretary of RDI, dated the Sixth
Amendment Effective Date, certifying the incumbency, signatures and
authority of the officers of RDI authorized to execute, deliver and
perform the applicable Credit Documents on behalf of RDI.
SECURITY DOCUMENTS.
(1) All Uniform Commercial Code financing statements and other
documents, instruments and agreements reasonably requested by
Collateral Agent to perfect the security interests, liens and
assignments granted to Collateral Agent by RDI in connection herewith,
appropriately completed and duly executed by the appropriate parties;
(2) Search certificates or similar documentation evidencing
the filing of the financing statements necessary to perfect the
security interests granted to Collateral Agent by RDI pursuant to the
Credit Documents will be prior to the financing statements of all other
Persons;
(3) The certificates representing the stock pledged to
Collateral Agent pursuant to the RDI Pledge Agreement, together with
blank stock powers for each such certificate duly executed by RDI and
the certificates representing the stock pledged to Collateral Agent
pursuant to the Restated Borrower Pledge Agreement, together with blank
stock powers for each such certificate duly executed by the Borrower;
<PAGE>
(4) Such other documents, instruments and agreements as
Collateral Agent may reasonably request to establish and perfect the
Liens granted to Collateral Agent or any Bank in this Agreement, the
Security Documents and the other Credit Documents.
OTHER ITEMS.
(1) A certificate of the President, a Vice President or Chief
Financial Officer of Borrower, addressed to Administrative Agent and
the Banks and dated as of the Sixth Amendment Effective Date,
certifying that:
(a) The representations and warranties set forth in
Paragraph 4.01 are true and correct as of such date;
(b) No Event of Default or Default has occurred and
is continuing as of such date; and
(c) Each of the Credit Documents required to be
delivered to Administrative Agent or any Bank on or prior to
the Sixth Amendment Effective Date is in full force and effect
as of such date;
(3) Certificates of insurance in forms acceptable to
Collateral Agent, naming Collateral Agent as additional insured or as
loss payee with respect to the assets of RDI secured pursuant to the
RDI Security Agreement;
(4) Such other evidence as any Bank may reasonably request to
establish the accuracy and completeness of the representations and
warranties and the compliance with the terms and conditions contained
in this Restated Credit Agreement and the other Credit Documents.
