AMENDMENT NO. 1 TO
LOAN AND SECURITY AGREEMENT
This Amendment No. 1 to Loan and Security Agreement is made as
of May 11, 1999 by and among each of the undersigned and amends that certain
Loan and Security Agreement, dated as of June 30, 1998 (the "Loan Agreement"),
among the financial institutions listed on the signature pages thereof as
lenders (such financial institutions, together with their respective successors
and assigns, are referred to hereinafter each individually as a "Lender" and
collectively as the "Lenders"), Bank of America National Trust and Savings
Association (formerly known as BankAmerica Business Credit, Inc.), a Delaware
corporation, as agent for the Lenders (in its capacity as agent, the "Agent"),
and Merisel Americas, Inc., a Delaware corporation (the "Borrower"). Capitalized
terms used herein without definition have the meanings assigned thereto in the
Loan Agreement.
RECITALS
A. The Borrower has requested that certain provisions of the Loan
Agreement be amended as more fully described below.
B. On the terms and subject to the conditions set forth in this
Amendment, the Borrower and the Agent, on behalf of the Lenders, have agreed to
the amendments and waivers to the Loan Agreement as set forth below.
AGREEMENT
In consideration of the foregoing, and for good and valuable
consideration, the receipt of which is hereby acknowledged, the undersigned
hereby agree as follows:
ARTICLE 1
AMENDMENTS AND WAIVERS TO LOAN AND SECURITY AGREEMENT
1.1 Amendment to the Definition of "Adjusted Net Earnings from
Operations". The definition of "Adjusted Net Earnings from Operations" set forth
in Section 1.1 of the Loan Agreement is hereby amended by changing the period at
the end of such definition to a semicolon and adding a new clause (h) to the
definition as follows:
"and (h) any gains or losses related in any way to the settlement
(which shall not exceed $21,000,000) of the action filed in the
Delaware Chancery Court captioned Merisel v. Turnberry Capital
Management, L.P., et al."
1.2 Amendment to the Definition of "Interest Coverage Ratio". The
definition of "Interest Coverage Ratio" set forth in Section 1.1 of the Loan
Agreement is hereby amended by adding the following sentence to the end of the
definition:
"Notwithstanding the foregoing, the Interest Coverage Ratio as used in
the definition of "Applicable Margin" herein, and only in such
definition, shall mean, for any period, the ratio of (a) Adjusted Net
Earnings from Operations (calculated without regard to clause (h) of
such definition) for such period plus the sum of the following to the
extent deducted in computing Adjusted Net Earnings from Operations: (i)
tax expense or provision for taxes, (ii) total interest expense net of
interest income, (iii) total amortization expense, (iv) total
depreciation expense, and (v) other non-cash expenses deducted in
computing Adjusted Net Earnings from Operations, over (b) total
interest expense during such period (net of interest income)."
1.3 Amendment to the Transaction with Affiliates Covenant. Section
9.15(a) of the Loan Agreement is hereby amended by adding a new clause (vii) to
the end of such section as follows:
"and (vii) the Borrower and its Subsidiaries may pay cash dividends or
make other advances or distributions to the Parent (in an aggregate
amount not to exceed $21,000,000) for purposes of paying obligations or
costs arising from the Parent's settlement of the action filed in the
Delaware Chancery Court captioned Merisel v. Turnberry Capital
Management, L.P., et al."
1.4 Waiver to Covenants and Representations. Agent, on behalf of
Lenders, hereby waives any Event of Default existing under the Loan Agreement as
a result of the Borrower's breach of any representation, warranty or covenant
contained in Article 8 or Article 9 on account of the settlement of the action
filed in the Delaware Chancery Court captioned Merisel v. Turnberry Capital
Management, L.P., et al., so long as the aggregate amount paid by Borrower in
connection with such settlement does not exceed $21,000,000.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
The Borrower warrants and represents to the Agent and the Lenders that:
2.1 Representations and Warranties True and Correct. The
representations and warranties contained in the Loan Agreement and the other
Loan Documents are correct in all material respects on and as of the date hereof
after giving effect to this Amendment (except representations and warranties
which are made as of a specified date shall only be required to be true and
correct in all material respects as of such specified date).
2.2 No Default or Event of Default. No event has occurred and is
continuing which constitutes a Default or an Event of Default after giving
effect to this Amendment.
ARTICLE 3
MISCELLANEOUS
3.1 Effective Date. This Amendment shall be effective as of the date
when the Agent has received (i) a duly executed counterpart of this Amendment
from the Borrower and (ii) the duly executed Amendment to Fee Letter from
Borrower to Agent, solely on Agent's own behalf, dated as of the date hereof.
3.2 No Other Waiver. Except as expressly waived hereby, the Loan
Documents shall remain in full force and effect as written and amended to date.
3.3 Governing Law. This Amendment shall be interpreted and the rights
and liabilities of the parties hereto determined in accordance with the internal
laws (as opposed to the conflict of laws provisions) of the State of California.
3.4 Counterparts. This Amendment may be executed in any number of
counterparts, and by the Agent and the Borrower in separate counterparts, each
of which shall be an original, but all of which shall together constitute one
and the same agreement.
IN WITNESS WHEREOF, the parties have entered into this
Amendment on the date first above written.
"BORROWER"
Merisel Americas, Inc., a Delaware corporation
By:__/s/__________________________________________________
Name:_____________________________________________________
Title:____________________________________________________
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
"AGENT"
Bank of America National Trust and Savings Association,
as the Agent
By:_/s/___________________________________________________
Name:_____________________________________________________
Title:____________________________________________________
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
"LENDERS"
Bank of America National Trust and Savings Association,
as a Lender
By:_/s/___________________________________________________
Name:_____________________________________________________
Title:____________________________________________________
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇