THIRD AMENDMENT TO AMENDED AND
RESTATED SUBORDINATED NOTE PURCHASE AGREEMENT
Re: $22,000,000 of Amended and Restated 11.78%
Subordinated Notes due March 10, 2000
Dated as of June 30, 1996
This Third Amendment (the "Amendment") to the
Amended and Restated Subordinated Note Purchase Agreement,
dated as of December 23, 1993, as amended as of September
30, 1994 and as of April 12, 1996 (the "Existing
Agreement"), is entered into as of June 30, 1996 by and
among the Noteholders identified on the signature pages
hereof (the "Noteholders") and Merisel Americas, Inc., a
Delaware corporation (the "Company"). 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 amend the
Existing Agreement as hereinafter set forth.
IN CONSIDERATION of the mutual promises and
covenants set forth herein, the parties hereto agree as
follows:
SECTION 1. AMENDMENTS TO THE EXISTING AGREEMENTS.
(b) Section 9.10 of the Existing Agreement
is hereby amended by deleting Section 9.10 of the Existing
Agreement and inserting in its place the following:
" 9.10 Incorporated Covenants. The
covenants set forth in Sections 6.6, 6.7,
6.9, 6.13, 6.14, 6.23 (only insofar as it
relates to the Indenture (as defined
therein)), 6.25 through 6.32, and 6.35
through 6.40 (the "Incorporated Covenants")
of the Senior Note Purchase Agreement, as
last amended by the Fourth Amendment thereto
dated as of the date hereof (as amended, the
"Senior Note Agreement"), are incorporated by
reference into this agreement as if stated
herein in full, together with all defined
terms used therein, provided, however, that
(i) such Incorporated Covenants, as
incorporated herein, shall reflect that they
are delivered to run in favor of the
Noteholders, rather than to the parties set
forth therein, and (ii) any amendments or
modifications to, waivers as to, or
expiration or cancellation of (by
cancellation, amendment or termination of the
Senior Note Agreement or otherwise), such
Incorporated Covenants subsequent to August
12, 1996 shall only be deemed to amend, waive
compliance with, or terminate, as the case
may be, such Incorporated Covenants, as
incorporated herein, if approved or consented
to by the holders of at least 66 2/3% in
aggregate unpaid principal amount of the
Notes then outstanding; and provided further
that all references in such Incorporated
Covenants, as incorporated herein, to
payments on the notes issued under the Senior
Note Agreement shall be deemed to continue to
refer to payments on such notes; and provided
further that the incorporation herein of the
Incorporation Covenants shall be limited to
the extent, and only to the extent necessary
to avoid any prohibition or limitation on any
payment to the Noteholders; and provided
further that if the Senior Note Agreement is
renewed or replaced by financing on terms
that contain covenants affording protection
to the Noteholders substantially equivalent
to, or greater than, the protection provided
by the Incorporated Covenants, as to
substantially the same matters as are covered
by the Incorporated Covenants (financing on
such terms, the "Replacement Financing"),
such covenants contained in such renewal or
replacement financing shall be deemed
incorporated herein. The Company shall, on
or before the later of (i) 60 days after the
date on which all Designated Senior Debt
(and, to the extent not otherwise included
herein, all interest, fees, costs, expenses,
and other obligations thereunder) has been
repaid in full in cash and all commitments
for such Debt have been terminated and (ii)
July 31, 1997, obtain such Replacement
Financing. In the event that the Company
renews or extends the Senior Note Agreement,
the last clause of the first sentence of this
Section 9.10 shall also apply to any
Replacement Financing that replaces such
Senior Note Agreement as renewed or
extended.";
SECTION 2. CONDITIONS TO EFFECTIVENESS.
The amendments set forth in Section 1 of this
Amendment shall become effective as of June 30, 1996
upon the satisfaction of each of the following
conditions precedent on or prior to August 12, 1996
(such latter date being referred to herein as the
"Condition Satisfaction Date"):
(a) the execution and delivery of this
Amendment by the Company and the requisite Noteholders
in accordance with Section 14.4 of the Existing
Agreement;
(b) the representations and warranties
in this Amendment, and the Existing Agreement as
amended by this Amendment (the "Amended Agreement"),
shall be true, correct and complete in all respects on
and as of the date hereof, and as of the Condition
Satisfaction Date, as though made on such dates (except
to the extent that such representations and warranties
relate solely to an earlier date, in which case they
are true, correct and complete in all material respects
as of such earlier date).
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(c) no Default or Event of Default
shall result from the consummation of the transactions
contemplated herein;
(d) the Company shall have paid to each
Noteholder the fee required by that certain letter
dated on or about August 9, 1996 from the Company to
the Noteholders;
(e) the Company shall have paid all of
the reasonable fees, costs and expenses ▇▇▇▇▇▇▇ &
▇▇▇▇▇, L.L.P., incurred by the Noteholders in
connection with this Amendment as evidenced by invoice
delivered to the Company, and shall have complied with
their deposit obligations with ▇▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.;
(f) all conditions to the effectiveness
of the Fourth Amendment to the Senior Note Agreement,
dated as of the date hereof, shall have been satisfied
and such Fourth Amendment to the Senior Note Agreement
shall have become effective; and
(g) the Company shall have delivered to
each of the Noteholders the equivalent of the documents
described in, and/or required under, Sections 3(a)(iv)
and (vii) of the Fourth Amendment to the Senior Note
Agreement (each of which shall be reasonably
satisfactory in form and substance to the Noteholders
and their counsel), each as relates to the Company, and
each shall be delivered addressed to the Noteholders,
as applicable.
SECTION 3. REPRESENTATION AND WARRANTIES OF
THE COMPANY.
In order to induce the requisite Noteholders
under Section 14.4 of the Existing Agreement to enter
into this Amendment and to amend the Existing Agreement
in the manner provided herein, the Company represents
and warrants to each Note holder that the following
statements are true, correct and complete:
(a) Corporate Power and Authority. The
Company has all requisite corporate power and authority
to enter into this Amendment and to carry out the
transactions contemplated by, and perform its
obligations under, the Amended Agreement.
(b) Authorization of Agreements. The
execution and delivery of this Amendment and the
performance of the Amended Agreement have been duly
authorized by all necessary corporate action by the
Company.
(c) No Conflict. The execution and
delivery by the Company of this Amendment and the
performance by the Company of the Amended Agreement do
not and will not (i) violate any provision of law, rule
or regulation applicable to the Company or any of its
Subsidiaries, the Certificate of Incorporation or
bylaws of the Company or any of its 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
Company or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any
of its properties or assets, or (iv) require any
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approval of stockholders or any approval or consent of
any Person under any contractual obligation of the
Company or any of its Subsidiaries.
(d) Conditions Met. The conditions
contained in Sections 2(b), (c) and (f) hereof have
been satisfied or will have been satisfied on or prior
to August 12, 1996.
(e) Governmental Consents. The
execution and delivery by the Company of this
Amendment, and the performance by the Company of the
Amended Agreement, do not and will 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.
(f) Binding Obligation. This Amendment
and the Amended Agreement are the legally valid and
binding obligations of the company, enforceable against
it in accordance with their respective terms, except as
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws
relating to or limiting creditors' rights generally or
by equitable principles to enforceability.
(g) Other Representations And
Warranties. Each of the representations and warranties
contained in Section 4 of the Fourth Amendment to the
Senior Note Agreement is true and correct in all
material respects.
SECTION 4. MISCELLANEOUS.
(a) Reference to and Effect on the
Existing Agreement. On and after the effective date of
this Amendment, each reference in the Existing
Agreement to "this Agreement," "hereunder," "hereof,"
"herein," 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) Execution and Counterparts. This
Amendment may be executed, including by facsimile, in
any number of counterparts, and by different parties
hereto in separate counterparts, 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.
(c) Headings. Section and subsection
headings in this Amendment are included herein for
evidence of reference only and shall not constitute a
part of this Amendment for any other purpose of be
given any substance effective.
(d) Applicable Law. 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.
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(e) Each of the Noteholders represents
that the portion of the principal balance of the Notes
held as of August 9, 1996 by such Noteholder is as set
forth on Schedule A hereto.
IN WITNESS WHEREOF, the Company and the
Noteholders have caused this Amendment to be duly
executed by this respect duly authorized officers, all
as of the day and year first above written.
MERISEL AMERICAS, INC.
By:
Name:
Title:
BEAR ▇▇▇▇▇▇▇ & CO. INC.
By:
Name:
Title:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By:
Name:
Title:
INCE & CO., as nominee for
THE CANADA LIFE ASSURANCE
COMPANY
By:
Name:
Title:
NOMURA HOLDING AMERICA, INC.
By:
Name:
Title:
PAN AMERICAN LIFE INSURANCE
COMPANY
By:
Name:
Title:
EXHIBIT A
Bear ▇▇▇▇▇▇▇ & Co. Inc. $ 11,200,000
▇▇▇▇▇▇▇, Sachs & Co. $ 400,000
Ince & Co., as nominee for
The Canada Life Assurance Company $ 4,000,000
Nomura Holding America, Inc. $ 400,000
Pan American Life Insurance Company $ 1,600,000
TOTAL $ 17,600,000