FIFTH AMENDMENT AND WAIVER
TO
AMENDED AND RESTATED SENIOR NOTE PURCHASE AGREEMENT
Dated as of October 2, 1996
This Fifth Amendment and Waiver to Amended and Restated
Senior Note Purchase Agreement (this "Amendment") is dated as
of October 2, 1996 by and among Merisel Americas, Inc., a ▇▇▇▇
▇▇▇▇ corporation ("the Company"), Merisel, Inc., a Delaware
corporation ("Merisel, Inc."), as guarantor and the
Noteholders signatory hereto, and is made with reference to
that certain Amended and Restated Senior Note Purchase
Agreement dated as of December 23, 1993 by and among the
Company and the original Purchasers of the Notes referred to
therein, and amended as of September 30, 1994, June 23, 1995,
April 12, 1996 and June 30, 1996 (the "Existing Agreement") by
and among the Company and the original Purchases of the Notes
referred to therein. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in
the Existing Agreement.
RECITAL
The parties hereto have agreed to modify the Existing
Agreement as hereinafter set forth in accordance with Section
8.1 of the Existing Agreement.
IN CONSIDERATION of the mutual promises and covenants set
forth herein, the parties hereto agree as follows:
1. Waivers. (a) Effective as of the Effective Time (as
defined in Section 4 of this Amendment), the undersigned
Noteholders hereby consent to the sale (the "Sale") by
Merisel, Inc. and the Company of certain of their direct and
indirect wholly-owned Subsidiaries described on Schedule I
hereto to CHS Electronics, Inc. (the "Buyer") pursuant to the
Purchase Agreement, dated as of August 29, 1996 (the "Purchase
Agreement"), as amended, by and among the Buyer, Merisel, Inc.
and the Company. The undersigned Noteholders also waive com
pliance by the Company with the provisions of Sections 6.14,
3.4(a)(ii) and 3.4(c) of the Existing Agreement (the "Waiver")
commencing as of the Effective Time solely to the extent that
such Sections would otherwise require a prepayment of the
Notes and of the Debt outstanding under the New Revolving
Credit Agreement as a result of the Sale; provided, however,
that as a condition to the foregoing Waiver, the Company and
Merisel, Inc. shall cause the sum of (x) $29,000,000 of the
Net Asset Sale Proceeds from the Sale plus (y) 40% of the
amount, if any, of aggregate Net Asset Sale Proceeds from the
Sale in excess of $130,000,000, to be paid in immediately
available funds to the Noteholders (upon receipt thereof by
Merisel, Inc., the Company or their respective Subsidiaries,
as applicable) as a prepayment of the Notes. No Make-Whole
Premium shall be owing in respect of such prepayment.
(a) Effective as of the Effective Time, the Noteholders
hereby waive the provisions of (i) Section 6.23 of the
Existing Agreement to the extent necessary to permit the amend
ment and waivers of the Subordinated Notes and Subordinated
Note Purchase Agreement contemplated by clause (iii) of
Section 3 hereof and (ii) with respect to facts, events or
circumstances occurring at or before the Effective Time,
Sections 6.6, 6.17, 6.25, 6.28, 6.31, 6.32 and 6.37.
2. Amendments to the Existing Agreement. The following
amendments to the Existing Agreement shall become effective at
the Effective Time:
(I) The Existing Agreement is hereby amended by deleting
Section 1.1 and inserting in its place the following:
"1.1 Description of Notes. The Company has
authorized the issuance for exchange of $100,000,000 ag
gregate principal amount of its Amended and Restated
11.5% Senior Notes (the "Notes") to be dated the date of
issue, to bear interest on the unpaid principal amount
from and after Fifth Amendment Effective Time to maturity
at the rate of (a) if no Event of Default has occurred
and is continuing, 11.5% per annum (the "Coupon Rate"),
or (b) if an Event of Default has occurred and is
continuing, the Overdue Rate, and on any overdue Make-
Whole Premium and (to the extent legally enforceable) any
overdue installment of interest at the Overdue Rate, to
mature on the Final Maturity Date, and to be
substantially in the form attached hereto as Exhibit A
(Revised as of April 12, 1996); provided that,
notwithstanding the terms of the Notes relating to the
payment of principal and interest, on and after the Fifth
Amendment Effective Time interest on and principal of
such Notes shall be paid at such times and in such
amounts as are provided in this Agreement; provided,
further, from and after May 31, 1997 no Make-Whole
Premium shall become payable with respect to the Notes.
The Company will pay interest monthly in arrears on the
fifth day of each month (beginning May 5, 1996).
Interest will be computed on the basis of a 360-day year
of twelve 30-day months. The term "Notes" as used herein
shall include each Note delivered pursuant to this Agree
ment.
-2-
(II) The Existing Agreement is hereby amended by deleting
the definition of "Consolidated Tangible Net Worth" in Section
2.1 and inserting in its place the following:
"Consolidated Tangible Net Worth" means, as of any
date of determination, the Consolidated Net Worth of the
Company, Merisel Europe or Merisel, Inc. (as indicated by
the context) without taking into consideration the
effects of (i) Additional Restructuring Fees, (ii) any
write-downs in connection with (A) any sale of any
Subsidiaries of Merisel, Inc. or any restructuring in
connection with such sale or (B) with respect to the
first quarter of 1996 only, accounts payable to the
extent (but only to the extent) such write-downs exceed
$7,000,000 and (iii) with respect to the third quarter of
1996 only, non-recurring charges and expenses, including
those relating to severance, relocations, asset write-
downs or losses in connection with dispositions, less
goodwill, patents, trademarks, organizational expense,
deferred research and development costs, deferred
marketing expenses and other intangible assets of the
Company, Merisel Europe or Merisel, Inc. and its
Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
(III) The Existing Agreement is hereby amended by
deleting the definition of "Final Maturity Date" in Section
2.1 and inserting in its place the following:
"Final Maturity Date" shall mean January 31, 1998.
(IV) The Existing Agreement is hereby amended by inserting
the following in the appropriate alphabetical order:
"Business Plan" means the Merisel Business Plan for
1996 and 1997 dated September 13, 1996, copies of which
have been previously furnished to the Noteholders.
"Excepted Prepayments" means any permanent
prepayment of the Notes pursuant to (i) Section
3.4(a)(ii), but only with respect to an Asset Sale of the
North Carolina Property and (ii) Section 3.4(a)(vi).
"Fifth Amendment" means that certain Fifth Amendment
and Waiver to Amended and Restated Senior Note Purchase
Agreement, dated as of October 2, 1996, by and among the
Company, Merisel, Inc. and the Noteholders.
"Fifth Amendment Effective Time" means the Effective
Time (as defined in the Fifth Amendment).
-3-
"North Carolina Property" means the undeveloped land
located in Cary, North Carolina currently leased by Mer
isel Properties, Inc.
"Planned Consolidated EBITSDA" means Consolidated
EBITSDA as set forth in the Business Plan.
"Planned Consolidated Net Income" means Consolidated
Net Income as set forth in the Business Plan.
(V) The Existing Agreement is hereby amended by deleting
the table set forth in Section 3.4(a)(i) and inserting in lieu
thereof the following:
"February 28, 1997 $ 600,000
March 31, 1997 $ 600,000
April 30, 1997 $ 600,000
May 31, 1997 $ 600,000
June 30, 1997 $ 600,000
January 2, 1998 $3,000,000
In addition to
the foregoing, in the event that
(x) the payment due on June 30,
1997 in respect of the 12.50%
Senior Notes issued pursuant to
the Indenture is paid (other
than with Securities as
permitted pursuant to Section
6.43) at any time prior to the
Final Maturity Date, on the date
of such payment the Company
shall prepay the outstanding
Notes by an aggregate amount
equal to $19,000,000 (less the
aggregate amount of any
prepayments of the Notes in
excess of $29,000,000 (other
than Excepted Prepayments) made
during the period from the Fifth
Amendment Effective Time through
the date of such payment) and
(y) in the event that the
payment due on December 31, 1997
in respect of the 12.50% Senior
Notes issued pursuant to the
Indenture is paid (other than
with Securities as permitted
pursuant to Section 6.43) at any
time prior to the Final Maturity
Date, on the date of such
payment the Company shall prepay
the outstanding Notes by an
aggregate amount equal to
$31,000,000 (less the aggregate
amount of any prepayments of the
Notes in excess of $29,000,000
(other than Excepted
Prepayments) made during the
period from the Fifth Amendment
Effective Time through the date
of such payment)."
-4-
(VI) The Existing Agreement is hereby amended by adding a
new paragraph (vi) to Section 3.4(a) to read as follows:
"(VI) On the date of receipt by Merisel, Inc.,
the Company, Merisel Europe or any of their respective
domestic Subsidiaries (from and after the Fifth Amendment
Effective Time) of any United States federal, state and local
income tax refunds in respect of loss carrybacks or research
and development credits more fully described in the attached
Exhibit A (currently estimated by the Company to be $4,000,000
to $6,000,000 in the aggregate, it being understood that the
actual amount thereof may be less than such estimate, notwith
standing the Company's use of its reasonable best efforts to
collect such refunds), the Company shall prepay the out
standing Notes by an aggregate amount equal to 40% of the
amount of such tax refunds (net of reasonable professional
fees and expenses associated with obtaining such refunds and
any required reserves associated therewith in accordance with
GAAP). No Make-Whole Premium shall be owing with respect to
such payments."
(VII) The Existing Agreement is hereby amended by
deleting the first sentence of paragraph (c) of Section 3.4
and inserting the following in lieu thereof:
"Any mandatory prepayment of the Notes pursuant
to Section 3.4(a)(ii)-(vi) shall be applied to
reduce the final payment of the Notes due on the
Final Maturity Date and otherwise in inverse order
of maturities."
(VIII) The Existing Agreement is hereby amended by
deleting Section 6.28 and inserting in its place the follow
ing:
"6.28 (Intentionally omitted)."
(IX) The Existing Agreement is hereby amended by deleting
Section 6.6 and inserting in its place the following:
"6.6 Maintenance of Merisel, Inc.'s Consolidated Ad
justed Tangible Net Worth. Merisel, Inc. shall maintain
Consolidated Adjusted Tangible Net Worth as of the end of
the fourth quarter of 1996 and at the end of each quarter
during 1997 equal to the Consolidated Tangible Net Worth
at the end of the third quarter of 1996, plus the Planned
Consolidated Net Income planned for the fourth quarter of
1996 and each quarter of 1997 ending on or before the
last day of the quarter for which such determination is
being
-5-
made, less the differential between the Planned
Consolidated EBITSDA for each such quarter and the
minimum Consolidated EBITSDA for such quarter provided in
Section 6.29."
(X) The Existing Agreement is hereby amended by deleting
Section 6.29 and inserting in its place the following:
"6.29 Minimum Consolidated EBITSDA of Merisel, Inc.
The aggregate Consolidated EBITSDA of Merisel, Inc. as of
the last date of the periods indicated below shall not be
less than the correlative amounts indicated below:
Period Consolidated EBITSDA
4th Quarter of 1996 $ 8,000,000
1st Quarter of 1997 $11,000,000
2nd Quarter of 1997 $12,400,000
3rd Quarter of 1997 $14,560,000
4th Quarter of 1997 $19,280,000"
(XI) The Existing Agreement is hereby amended by deleting
Section 6.25 and inserting in its place the following:
"6.25 Maintenance of Merisel, Inc.'s Fixed Charge
Coverage Ratio. For each period indicated below, the ra
tio of (i) Consolidated EBITSDA of Merisel, Inc. to (ii)
Consolidated Interest Charges of Merisel, Inc., shall be
not less than the correlative amount indicated below:
Period Ratio
Fourth Quarter of 1996 0.61:1.00
First Quarter of 1997 0.83:1.00
Second Quarter of 1997 0.89:1.00
Third Quarter of 1997 1.13:1.00
Fourth Quarter of 1997 1.44:1.00"
(XII) The Existing Agreement is hereby amended by
deleting Sections 6.30 and 6.31 and inserting in their place
the following:
"6.30 Maintenance of Inventory Turnover Ratio. For
each period indicated below, the ratio of (i) the ▇▇▇▇▇▇▇
dated aggregate cost of sales of Merisel, Inc. at the end
of such period multiplied by four to (ii) the Average Con
solidated Net Inventory of Merisel, Inc. shall be not
less than the correlative amount indicated below:
-6-
Minimum Permitted
Period Inventory Turnover
Fourth Quarter of 1996 9.00
First Quarter of 1997 9.00
Second Quarter of 1997 9.00
Third Quarter of 1997 9.00
Fourth Quarter of 1997 9.00
6.31 Minimum Ratio of Accounts Payable to
Inventory. For each period indicated below, the ratio of
the Consolidated amount of accounts payable of Merisel,
Inc. on the last day of such period to the Consolidated
amount of inventory of Merisel, Inc. on the last day of
such period shall be not less than the correlative ratio
indicated below (the "A/P Inventory Ratio"):
Minimum
Period Permitted Ratio
Fourth Quarter of 1996 0.90:1.00
First Quarter of 1997 0.90:1.00
Second Quarter of 1997 0.90:1.00
Third Quarter of 1997 0.90:1.00
Fourth Quarter of 1997 0.90:1.00
; provided that Merisel, Inc. shall maintain an A/P Inven
tory Ratio equal to or greater than 1.00:1.00 for one out
of each two consecutive periods indicated above."
(XIII) The Existing Agreement is herby amended by
deleting Section 6.37 and inserting in its place the follow
ing:
"6.37 Minimum Accounts Payable. On the last day of
each period indicated below, the Consolidated amount of
accounts payable of Merisel, Inc. shall be not less than
the correlative amount indicated below:
Period Amount
Fourth Quarter of 1996 $380,000,000
First Quarter of 1997 $390,000,000
Second Quarter of 1997 $390,000,000
Third Quarter of 1997 $390,000,000
Fourth Quarter of 1997 $500,000,000"
(XIV) The Existing Agreement is hereby amended by
deleting (i) the references to Section 6.28 in clauses (a) and
(b) of Section 6.17 and (ii) the requirement in clause (l) of
-7-
Section 6.17 that the Company deliver written reports con
cerning the cash balances of Merisel, Inc. alone.
(XV) The Existing Agreement is hereby amended by deleting
Section 6.35 in its entirety and inserting in lieu thereof the
following:
"6.35 (Intentionally omitted)."
(XVI) The Existing Agreement is hereby amended by adding
a new Section 6.42 to read as follows:
"6.42 The Company shall use reasonable best efforts
to (x) obtain any United States federal, state and local
income tax refunds to which the Company, Merisel Europe,
Merisel, Inc. or any of their respective domestic Subsid
iaries may be entitled and (y) sell the North Carolina
Property, in each case as soon as practicable following
the Fifth Amendment Effective Time."
(XVII) The Existing Agreement is hereby amended by
deleting in its entirety clause (i) in the definition of
"Permitted Liens" in Section 2.1 and inserting in its place
the following:
"(i) Liens permitted under that
certain letter dated as of October 2, 1996
between the Company and the Noteholders, as
amended from time to time;"
(XVIII) The Existing Agreement is hereby amended by adding
a new clause (k) to the definition of "Permitted Liens" in
Section 2.1 to read as follows:
"(k) Liens securing obligations
of the Company, Merisel Europe and their
Subsidiaries under foreign exchange hedging
arrangements or other similar contracts and
agreements entered into for non-speculative
purposes to protect the Company, Merisel Europe
and their Subsidiaries against fluctuations in
currency exchange rates; provided, however,
that the maximum aggregate amount of assets
subject to such Liens shall not exceed
$10,000,000."
(XIX) The Existing Agreement is hereby amended by
incorporating by reference into Section 6.7(b) the new clause
(x) that is being added to Section 7.02(c) of the Revolving
Credit Agreement.
-8-
(XX) The Existing Agreement is hereby amended by deleting
the table set forth in Section 6.32 and inserting in lieu
thereof the following:
"Fiscal Year 1996 $12,885,000
First Quarter of 1997 $ 4,000,000
First Two Quarters of 1997 $ 7,000,000
First Three Quarters of 1997 $11,000,000
Fiscal Year 1997 $13,000,000"
(XXI) The Existing Agreement is hereby amended by adding
a new Section 6.43 to read as follows:
"6.43 Merisel, Inc. Debt Restructuring. Neither
Merisel, Inc. nor the Company shall not, directly or indi
rectly, issue, or cause or permit to be issued,
Securities of Merisel, Inc. to or for the benefit of the
holders of Parent Notes, except for the issuance of
common equity Securities of Merisel, Inc. or Merisel,
Inc. Preferred Securities (as hereinafter defined), in
each case in exchange for all outstanding principal,
interest and other amounts owed or owing on or in respect
of the Parent Notes. "Merisel, Inc. Preferred
Securities" means preferred equity securities of Merisel,
Inc. ("Original Preferred Securities") that are not
mandatorily redeemable, do not otherwise mature, will not
be called by or on behalf of Merisel, Inc. and with
respect to which the holders thereof have no right to re
ceive cash or other property (other than common equity
Securities of Merisel, Inc. or additional Securities hav
ing the same terms as such Original Preferred Securities)
on account of liquidation preferences, accrued dividends
or otherwise, in each case unless and until there shall
have occurred the payment in full in cash of all outstand
ing principal, interest and other amounts due on or in
respect of the Notes or this Agreement."
(XXII) The Existing Agreement is hereby amended by
deleting Section 6.38 and inserting in its place the follow
ing:
"6.38 (Intentionally Deleted)"
(XXIII) Anything to the contrary in Section 7.1 of the
Existing Agreement notwithstanding, neither (x) any failure by
Merisel FAB to make any payment when due, whether at stated
maturity or otherwise, of any amount in respect of the
accounts payable owed to Vanstar, Inc., any exercise of rem
edies by the holder thereof against Merisel FAB or any
judgment rendered against Merisel FAB with respect thereto nor
-9-
(y) any default in the payment of interest on the Parent
Notes shall constitute an Event of Default or Default for the
purposes of the Amended Agreement, the Notes or the other docu
ments referred to therein, except to the extent that the same
is preceded or followed by, or otherwise connected to, (i) the
commencement, if any, of an insolvency, bankruptcy or similar
proceeding by or against Merisel, Inc. or any of its Subsidiar
ies or (ii) in the case of Merisel, Inc., if earlier, the ex
ercise of any remedy in respect of such default by or on
behalf of one or more holders of Parent Notes or the indenture
trustee thereof (including without limitation the acceleration
of the outstanding principal amount of the Parent Notes or the
commencement of an action by one or more of such holders or
such indenture trustee in respect of such default).
(XXIV) The Existing Agreement is hereby amended by
deleting clause (n) of Section 7.1 in its entirety and in
serting in lieu thereof the following:
"(n) (Intentionally omitted)."
(XXV) The Existing Agreement is hereby amended by
inserting at the end of Section 9.5 the following:
"Notwithstanding the foregoing, so long as
no Event of Default has occurred and is continuing the
Company shall only be responsible for the fees, costs and
expenses of one financial advisor for all of the
Revolving Credit Lenders under the New Revolving Credit
Agreement and the holders of the Notes and, the Company
shall only be responsible for the fees, expenses and
disbursements of such financial advisor to the extent the
same relate to the review of monthly and quarterly
financial information supplied by the Company and
quarterly (or other periodic) management reviews.
Section 3. Reaffirmation of Parent Guaranty. By
its signature below, Merisel, Inc. (i) consents to the
amendment of the Existing Agreement by this Amendment, (ii)
acknowledges and reaffirms its obligations owing under the
Parent Guaranty and (iii) agrees that the Parent Guaranty is
and shall remain in full force and affect.
Section 4. Conditions to the Effective Time. The
Waiver, amendments and agreements set forth herein shall
become effective (the time of such effectiveness, the
"Effective Time") upon the satisfaction of all the following
conditions:
(i) this Amendment shall have been executed and
delivered by all the Noteholders, the Company and Merisel
Inc.;
(ii) the Company, Merisel Europe, Merisel, Inc.
and all the Lenders (as defined in the Revolving Credit Agree
ment) shall have executed and delivered the Second Amendment
to the Revolving Credit Agreement, which shall be in form and
substance acceptable to the Noteholders;
(iii) the Company, Merisel Europe, Merisel, Inc. and
certain holders of the Subordinated Notes shall have executed
and delivered the Fourth Amendment to the Subordinated Note
Purchase Agreement, which shall be in form and substance
acceptable to the Noteholders;
(iv) the Sale contemplated by the Purchase Agreement
shall have been consummated, and the portion of the Net Asset
Sale Proceeds required to be paid pursuant to Section 1, shall
have been so paid substantially contemporaneously with such
consummation;
(v) all the representations and warranties made by the
Company and Merisel, Inc. in Section 5 shall be true and
correct in all material respects as of the Effective Time;
(vi) the delivery by Merisel Canada of a Consent
and Acknowledgment in the form of Annex A hereto;
(vii) the delivery by Merisel Europe of a Consent
and Acknowledgement in the form of Annex B hereto;
(viii) the delivery by the Company and Merisel, Inc. to the
Noteholders executed copies of (x) certified resolutions of
their respective Boards of Directors approving and authorizing
the execution, delivery and performance of this Amendment, (y)
signature and incumbency certificates of the officers
executing this Amendment and (z) executed copies of this
Amendment; and
(ix) all corporate and other proceedings required to be
taken in connection with the transactions contemplated hereby
shall have been taken.
Section 5. Representations and Warranties of the
Company and Merisel, Inc. In order to induce the Noteholders
to enter into this Amendment and to grant the Waiver with re
spect to the Existing Agreement, the Company and Merisel, Inc.
represent and warrant to each Noteholder that the following
statements are true, correct and complete:
(a) Corporate Power and Authority. Each of the Company and
Merisel, Inc. has all requisite corporate power and authority
to enter into this Agreement and to carry out the
-11-
transactions contemplated by, and perform its respective obligations
under, the Existing Agreement as amended by this Amendment
(the "Amended Agreement").
(b) Authorization of Agreements. The execution and
delivery of this Agreement and the performance of the Amended
Agreement have been duly authorized by all necessary corporate
action by the Company and Merisel, Inc.
(c) No Conflict. The execution and delivery by the Company
and Merisel, Inc. of this Amendment and the performance by the
Company and Merisel, Inc. of the Amended Agreement do not and
shall not (i) violate any provision of law, rule or regulation
applicable to the Company, Merisel, Inc. or any of their re
spective Subsidiaries, or the Certificate of Incorporation or
bylaws of the Company, Merisel, Inc. or any of their respec
tive Subsidiaries, (ii) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a
default under any material contractual obligation of the Com
pany, Merisel, Inc. or any of their respective Subsidiaries,
(iii) result in or require the creation or imposition of any
Lien upon any of their properties or assets, or (iv) require
any approval of stockholders or any approval or consent of any
Person under any contractual obligation of the Company, Mer
isel, Inc. or any of their respective Subsidiaries, other than
those that have been obtained.
(d) Governmental Consents. The execution and delivery by
the Company and Merisel, Inc. and the performance by the
Company and Merisel, Inc. of the Amended Agreement do not and
shall not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any Federal,
state or other governmental authority or regulatory body.
(e) Binding Obligation. This Amendment and the Amended
Agreement are the legally valid and binding obligation of the
Company and Merisel, Inc., enforceable against each of them in
accordance with their terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other similar law relating to or limiting creditors' rights
generally or by equitable principles relating to en
forceability.
(f) Incorporation of Representations and Warranties from
Existing Agreement. The representations and warranties
contained in Section 5 of the Existing Agreement are and shall
be true, correct and complete in all material respects on and
as of the Effective Date to the same extent as though made on
and as of that date, except to the extent that such representa
tions and warranties specifically relate to an earlier date,
-12-
in which case they are true, correct and complete in all
material respects as of such earlier date.
(g) Absence of Default. After giving effect to this
Amendment, no event has occurred and is continuing or shall
result from the consummation of the transactions contemplated
by this Amendment that would constitute an Event of Default,
or an event that with the passage of time, the giving of
notice or both would constitute an Event of Default.
Section 6. Miscellaneous.
(h) On and after the Effective Time, each reference in the
Existing Agreement to "this Agreement", "hereunder", "hereof",
"herein", or words of like import referring to the Existing
Agreement, and each reference in the Notes and the other
documents referred to in the Existing Agreement to the "Note
Purchase Agreement", "thereunder", "thereof", or words of like
import referring to the Existing Agreement shall mean and be a
reference to the Existing Agreement as amended by this
Amendment.
(i) Except as specifically waived by this Amendment, the
Existing Agreement, the Notes and the other documents referred
to in the Existing Agreement shall remain in full force and
effect and are hereby ratified and confirmed.
(j) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, con
stitute a waiver of any provision of, or operate as a waiver
of any right, power or remedy of the Agent or any Lender
under, the Existing Agreement, the Notes or any of the
documents referred to in the Existing Agreement.
(k) This Amendment may be executed in any number of
counterparts, and by different parties hereto in separate coun
terparts, each of which when so executed and delivered shall
be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
(l) Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any
substantive effect.
(m) Notwithstanding anything to the contrary herein, if the
Effective Time does not occur on or before October 11, 1996,
this Amendment shall be of no force or effect, and the
Existing Agreement shall remain in full force and effect as if
-13-
this Amendment had not been executed or delivered by any party
hereto.
(n) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO AND ALL OTHER ASPECTS HEREOF SHALL BE DEEMED TO
BE MADE UNDER, SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALI
FORNIA.
(p)
IN WITNESS WHEREOF, the parties hereto have caused
this Fifth Amendment and Waiver to Amended and Restated Senior
Note Purchase Agreement to be executed by their respective of
ficers thereunto duly authorized as of the date first above
written.
MERISEL AMERICAS, INC.
By:
Name:
Title:
MERISEL, INC.
By:
Name:
Title:
NOTEHOLDERS
Name of Holder:__________________
By:__________________
Title
-14-
ANNEX A
CONSENT AND ACKNOWLEDGEMENT
The undersigned hereby consents to the terms of the
Fifth Amendment to Amended and Restated Senior Note Purchase
Agreement dated as of October 2, 1996 (the "Amendment") with
respect to the Amended and Restated Senior Note Purchase Agree
ment dated as of December 23, 1993 (as amended, the "Note Pur
chase Agreement") among Merisel Americas, Inc. Merisel, Inc.
as Guarantor and the Noteholders party thereto, and hereby con
firms and agrees that each document executed by the
undersigned pursuant to and as defined in the Note Purchase
Agreement is, and shall continue to be, in full force and
effect and is hereby ratified and confirmed in all respects
except that, on and after the effective date of the Amendment,
each reference in each such document to "the Note Purchase
Agreement," "thereunder," "thereof," "therein" or words of
like import referring to the Note Purchase Agreement shall
mean and be a reference to the Note Purchase Agreement as
amended by the Amendment.
MERISEL CANADA, INC.
By: _____________________
Name:
Title:
Dated: As of October __, 1996
-15-
ANNEX B
CONSENT AND ACKNOWLEDGEMENT
The undersigned hereby consents to the terms of the
Fifth Amendment to Amended and Restated Senior Note Purchase
Agreement dated as of October 2, 1996 (the "Amendment") with
respect to the Amended and Restated Senior Note Purchase Agree
ment dated as of December 23, 1993 (as amended, the "Note Pur
chase Agreement") among Merisel Americas, Inc. Merisel, Inc.
as Guarantor and the Noteholders party thereto, and hereby con
firms and agrees that each document executed by the
undersigned pursuant to and as defined in the Note Purchase
Agreement is, and shall continue to be, in full force and
effect and is hereby ratified and confirmed in all respects
except that, on and after the effective date of the Amendment,
each reference in each such document to "the Note Purchase
Agreement," "thereunder," "thereof," "therein" or words of
like import referring to the Note Purchase Agreement shall
mean and be a reference to the Note Purchase Agreement as
amended by the Amendment.
MERISEL EUROPE, INC.
By: _____________________
Name:
Title:
Dated: As of October __, 1996