FOURTH AMENDMENT AND WAIVER
TO
AMENDED AND RESTATED SUBORDINATED NOTE PURCHASE AGREEMENT
Dated as of October 2, 1996
This Fourth Amendment and Waiver to Amended and Restated
Subordinated Note Purchase Agreement (this "Amendment") is dated
as of October 2, 1996 by and among Merisel Americas, Inc., a ▇▇▇▇
▇▇▇▇ corporation ("Merisel Americas"), and the Noteholders
signatory hereto, and is made with reference to that certain
Amended and Restated Subordinated Note Purchase Agreement dated
as of December 23, 1993 and amended as of September 30, 1994,
April 12, 1996 and June 30, 1996 (the "Existing Agreement") by
and among Merisel Americas. 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 Agree
ment as hereinafter set forth in accordance with Section 14.4 of
the Existing Agreement.
IN CONSIDERATION of the mutual promises and covenants set
forth herein, the parties hereto agree as follows:
1. Waivers and Consent. (a) Effective as of the Effective
Time (as defined in Section 3 of this Amendment), the undersigned
Lenders hereby consent to the sale (the "Sale") by Merisel, Inc.
and Merisel Americas 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 Agree
ment, dated as of August 29, 1996 (the "Purchase Agreement"), as
amended, by and among the Buyer, Merisel, Inc. and Merisel
Americas. The undersigned Lenders also waive compliance by the
Borrowers with the provisions of Sections 9.10 (which
incorporates Section 6.14 from the Senior Note Purchase
Agreement) and 9.17 of the Existing Agreement (the "Waiver")
commencing as of the Effective Time solely to the extent that
such Sections would otherwise require a repayment of the Debt out
standing under the Revolving Credit Agreement and the Senior Note
Purchase Agreement.
(a) Effective as of the Effective Time, the Noteholders
hereby waive the provisions of (i) Section 9.10 of the Existing
Agreement to the extent necessary to permit the amendment and
waivers of the Revolving Credit Agreement, Senior Notes and
Senior Note Purchase Agreement contemplated by clauses (ii) and
(iii) of Section 3 hereof and hereby agree to the extent that any
covenants or other provisions of the Senior Note Agreement are
incorporated by reference into Section 9.10 of the Existing
Agreement, the Noteholders hereby consent to such amendments and
waivers to such incorporated covenants and other provisions and
(ii) with respect to facts, events or circumstances occurring at
or before the Effective Time, Section 9.10 of the Existing
Agreement with respect to Sections 6.6, 6.17, 6.25, 6.28, 6.31,
6.32 and 6.37 of the Senior Note Agreement as incorporated by
reference in said Section 9.10.
2. Amendments to the Existing Agreement. The following
amendment to the Existing Agreement shall become effective at the
Effective Time:
(I) Anything to the contrary in Section 11.1 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 remedies by the
holder thereof against Merisel FAB or any judgment rendered
against Merisel FAB with respect thereto nor (y) any default in
the payment of interest on the Merisel Parent Debt (as defined in
the Revolving Credit Agreement) shall constitute an Event of
Default or Default for the purposes of the Amended Agreement or
the Notes, 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 Subsidiaries or (ii) in the
case of Merisel, Inc., if earlier, the exercise of any remedy in
respect of such default by or on behalf of one or more holders of
Merisel Parent Debt or the indenture trustee thereof (including
without limitation the acceleration of the outstanding principal
amount of the Merisel Parent Debt or the commencement of an
action by one or more of such holders or such indenture trustee
in respect of such default).
3. 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 the holders of at least 66-2/3% in aggregate unpaid principal
amount of the Notes (the "Requisite Holders" and Merisel
Americas;
(ii) Merisel Americas, Merisel Europe, Merisel Inc. and all
the Lenders (as defined in the Revolving Credit Agreement) shall
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have executed and delivered the Second Amendment to the Revolving
Credit Agreement, which shall be in form and substance acceptable
to the Requisite Noteholders;
(iii) Merisel Americas, Merisel Europe, Merisel Inc.
and all the holders of the Senior Notes shall have executed and
delivered the Fifth Amendment to the Senior Note Purchase
Agreement, which shall be in form and substance acceptable to the
Requisite Holders;
(iv) the Sale contemplated by the Purchase Agreement shall
have been consummated;
(v) all the representations and warranties made by Merisel
Americas in Section 4 shall be true and correct in all material
respects as of the Effective Time;
(vi) the delivery by Merisel Americas to the Noteholders of
(x) certified resolutions of its Board 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
(vii) all corporate and other proceedings required to
be taken in connection with the transactions contemplated hereby
shall have been taken.
4. Representations and Warranties of Merisel Americas. In
order to induce the Noteholders to enter into this Amendment and
to grant the Waiver with respect to the Existing Agreement,
Merisel Americas represents and warrants to each of the
Noteholders that the following statements are true, correct and
complete:
(a) Corporate Power and Authority. Merisel Americas has all
requisite corporate power and authority to enter into this
Agreement and to carry out the transactions contemplated by, and
perform its 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
Merisel Americas.
(c) No Conflict. The execution and delivery by Merisel
Americas of this Amendment and the performance by Merisel
Americas of the Amended Agreement do not and shall not (i)
violate any provision of law, rule or regulation applicable
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to Merisel Americas or any of its Subsidiaries, the Certificate of
Incorporation or bylaws of Merisel Americas or any of its
Subsidiaries, (ii) conflict with, result in a breach of or con
stitute (with due notice or lapse of time or both) a default
under any material contractual obligation of Merisel Americas or
any of its 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
Merisel Americas or any of its Subsidiaries, other than those
that have been obtained.
(d) Governmental Consents. The execution and delivery by
Merisel Americas and the performance by Merisel Americas 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 Merisel
Americas, enforceable against it 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 enforceability.
(f) Incorporation of Representations and Warranties from
Existing Agreement. The representations and warranties contained
in Article 2 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 representations and
warranties specifically relate to an earlier date, 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.
5. Miscellaneous.
(a) 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 to the "Note Purchase
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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.
(b) Except as specifically waived by this Amendment, the
Existing Agreement and the Notes shall remain in full force and
effect and are hereby ratified and confirmed.
(c) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right,
power or remedy of any Noteholder under, the Existing Agreement
or any of the Notes.
(d) 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.
(e) 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.
(f) 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 this
Amendment had not been executed or delivered by any party hereto.
(g) 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 CALIFORNIA.
(h)
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IN WITNESS WHEREOF, the parties hereto have caused this
Fourth Amendment and Waiver to Amended and Restated Subordinated
Note Purchase Agreement to be executed by their respective
officers thereunto duly authorized as of the date first above
written.
MERISEL AMERICAS, INC.
By:
Name:
Title:
NOTEHOLDERS
Name of Noteholder:______________
By:__________________
Title: