EXHIBIT 2.5
AMENDMENT NO. 1 AND WAIVER TO
AMENDED AND RESTATED RECEIVABLES
PURCHASE AND SERVICING AGREEMENT
AMENDMENT NO. 1 AND WAIVER dated as of November 7, 1996 among Merisel
Capital Funding, Inc. (the "Seller"), Redwood Receivables Corporation (the
"Purchaser"), General Electric Capital Corporation (the "Operating Agent" and
"Collateral Agent") and Merisel Americas, Inc. (the "Servicer").
WHEREAS, the Seller, the Purchaser, the Operating Agent, the
Collateral Agent and the Servicer are parties to an Amended and Restated
Receivables Purchase and Servicing Agreement dated as of September 27, 1996 (the
"Purchase Agreement").
WHEREAS, the parties to the Purchase Agreement desire to amend such
Purchase Agreement.
WHEREAS, as of the fiscal quarter ended September 28, 1996, the Seller
breached certain financial covenants contained in the Purchase Agreement and the
Seller and Servicer have requested that the Purchaser, the Operating Agent and
the Collateral Agent waive such breaches, subject to the terms and conditions
hereof.
THE PARTIES AGREE AS FOLLOWS:
1. Definitions. All capitalized terms used herein, unless
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otherwise defined, are used as defined in the Purchase Agreement.
2. Amendment to Purchase Agreement.
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(a) Section 2.04(d) of the Purchase Agreement is amended by deleting
the phrase "Outstanding Balance" which appears in the first sentence thereof and
substituting in lieu thereof the phrase "Billed Amount less all payments
received from the Obligor with respect thereto".
(b) Section 4.02(b) of the Purchase Agreement is amended by adding the
phrase "and is able to bring suit or otherwise enforce its remedies through
judicial process against each Obligor of a Transferred Receivable" to the end
thereof.
(c) Section 4.02(l) of the Purchase Agreement is amended by adding the
phrase "each Originator and" before
the phrase "the Servicer" each time such phrase appears therein.
(d) Section 5.01(i) of the Purchase Agreement is amended by (i) adding
the phrase "fees and" before the word "disbursements" and (ii) adding the phrase
"after October 1, 1996" after the word "disbursements".
(e) Section 6.02(c) of the Purchase Agreement is amended by deleting
the phrase "and after" and adding the phrase "and any date thereafter" after the
term "Facility Termination Date".
(f) Section 6.03(c)(ii) of the Purchase Agreement is amended by
deleting the reference "6.02(a)(v)" and substituting in lieu thereof
"6.02(a)(vi)".
(g) Section 6.04(a) of the Purchase Agreement is amended by
(i) changing "12:00 p.m." to "1:00 p.m. and adding the phrase
"(and if later than 12:00 p.m., the Operating Agent shall notify the Seller
and Servicer by 12:00 p.m. of the amounts to be disbursed on such
Settlement Date under this Section 6.04(a))" after the term "Settlement
Date" the first time such term appears;
(ii) deleting the phrase "minus the Margin" in clause (i) (A);
and
(iii) deleting the text contained in clause (ii) and substituting
in lieu thereof the phrase "[INTENTIONALLY OMITTED]".
(h) Section 6.05(b)(ii) of the Purchase Agreement is amended by
(i) deleting the word "such" the third time it appears therein
and substituting in lieu thereof the word "the"; and
(ii) adding the phrase "of maturity of the Commercial Paper
maintaining such Capital Investment" after the word "date" in the last line
therein.
(i) Section 6.05(b)(iv)(B) of the Purchase Agreement is amended by
deleting the phrase "the balance"
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and substituting in lieu thereof the phrase "all amounts remaining in the
Deferred Purchase Price Sub-Account".
(j) Section 6.05(b)(viii) of the Purchase Agreement is amended by
deleting the phrase "(c)(i)-(c)(v)" and substituting in lieu thereof the phrase
"(c)(i)-(c)(vi)".
(k) Section 6.05(c) of the Purchase Agreement is amended by
(i) adding the phrase "to the extent not paid pursuant to
Section 6.05(b)(v)" to the end of clause (iv)(A) thereof;
(ii) adding the phrase "any other amounts," before the first
word of clause (iv)(C) thereof;
(iii) adding a new clause (v) to read: "(v) to the Collateral
Account, an amount equal to (A) accrued and unpaid Daily Yield minus (B)
the sum of (i) amounts paid pursuant to Section 6.05(c)(i)(A), (ii) amounts
paid pursuant to Section 6.05(c)(ii)(A), and (iii) amounts paid under
Section 6.05 (c)(iv)(A) to the extent not paid pursuant to Section
6.05(b)(vi);
(iv) redesignating clauses (v) and (vi) as (vi) and (vii),
respectively; and
(v) changing the reference from "(c)(v)" to "(c)(vi)" in clause
(vii) (after redesignation).
(l) Section 6.05(d) of the Purchase Agreement is amended by
(i) deleting the word "after" which appears as the first word
therein and substituting in lieu thereof the word "on";
(ii) adding the phrase "and after any date thereafter" after the
term "Facility Termination Date"; and
(iii) deleting the word "day" and substituting in lieu thereof
the phrase "such date".
(m) Section 6.07(a) of the Purchase Agreement is amended by
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(i) deleting the word "and" the first time it appears therein;
and
(ii) adding the phrase "and (d)" after the designation "(c)" the
first time such designation appears therein.
(n) Section 7.06(g) of the Purchase Agreement is amended by deleting
the word "are" which appears in the second line therein and substituting in lieu
thereof the phrase "were, immediately prior to the transfer to the Purchaser
pursuant to this Agreement,".
(o) Section 14.06 of the Purchase Agreement is amended by adding a new
sentence at the end thereof to read as follows: "Whenever the Seller or the
Servicer, as the case may be, is required or permitted to obtain the consent of
the Purchaser under this Agreement, such consent shall be obtained only in the
form of a prior written consent of the Purchaser.
(p) Section 14.07(b) of the Purchase Agreement is amended by deleting
the word "exclusive".
(q) Exhibit H of the Purchase Agreement is amended by (i) making the
following revisions to the table entitled "FINANCIAL COVENANTS": (A) changing
the figure "150,000,000" to "100,000,000" and (B) changing the ratio "1.5 to 1"
to "1.2 to 1" (ii) adding the phrase "and any write-downs in connection with the
sale of any Subsidiaries of the Parent", after the word "adjustments", in the
definition "Tangible Net Worth" and (iii) deleting the date "December 28, 1996"
which appears in the first line of the last paragraph thereof and substituting
in lieu thereof the date "January 3, 1998".
3. Waiver of Purchase Agreement. The Operating Agent, the
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Collateral Agent and the Purchaser agree to waive the Termination Event
resulting from the breach of the Fixed Charge Coverage Ratio and the Tangible
Net Worth covenant contained in Exhibit H of the Purchase Agreement as
applicable to the Seller for the fiscal quarter ended September 28, 1996.
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4. Conditions Precedent.
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(a) The effectiveness of this Amendment No. 1 and Waiver is subject to
the conditions precedent that the Collateral Agent, the Operating Agent and the
Purchaser shall have received each of the following, in form and substance
satisfactory to each such party:
(i) an executed copy of Amendment No. 1 to the Amended and
Restated Receivables Transfer Agreement (the "Transfer Agreement
Amendment")
(ii) a certificate of the Secretary of each of the Seller and
the Servicer, dated the date of this Amendment No. 1 and Waiver and
certifying (A) that attached thereto is a true and complete copy of a
resolution of the Board of Directors of the Seller or the Servicer, as the
case may be, authorizing the execution, delivery and performance of this
Amendment No. 1 and Waiver, the Transfer Agreement Amendment, and all other
documents required or necessary to be delivered hereunder and that such
resolution has not been modified, rescinded or amended and is in full force
and effect, (B) as to the incumbency and specimen signature of each
Person's officers executing this Amendment No. 1 and Waiver, the Transfer
Agreement Amendment, and all other documents required or necessary to be
delivered hereunder and (C) that each of the representations and warranties
made by the Seller and the Servicer in this Amendment No. 1 and Waiver and
in the Transfer Agreement Amendment is true and correct as of the date
hereof.
(iii) Such other approvals, opinions or documents as the
Collateral Agent or the Operating Agent may reasonably request.
5. Confirmation of Agreement and Loan Documents. Each of the Seller
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and the Servicer agree that, except for the specific waiver set forth in Section
3 and the specific amendments set forth in Section 2, nothing herein shall be
deemed to be a waiver or amendment of any covenant or agreement contained in the
Purchase Agreement and each of the other documents executed in connection
therewith are ratified and confirmed in all respects and shall remain in full
force and effect in accordance with its terms. Each reference in the Purchase
Agreement to "this Agreement" and in each of the other documents to be executed
in connection
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therewith to the "Purchase Agreement" shall mean the Purchase Agreement as
amended by this Amendment No. 1 and Waiver, and as hereinafter amended or
restated. Nothing herein shall obligate the Purchaser, the Operating Agent or
the Collateral Agent to enter into any future or waiver or amendment (in each
case, whether similar or dissimilar).
6. Seller's and Servicer's Representations and Warranties. Each of
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the Seller and the Servicer represents and warrants that:
(a) this Amendment No. 1 and Waiver has been duly authorized, executed
and delivered pursuant to its corporation power;
(b) this Amendment No. 1 and Waiver constitutes its legal, valid and
binding obligation; and
(c) after giving effect to the amendments referred to herein, there
does not exist any Termination Event.
7. Waiver by the Seller. Each of the Seller and the Servicer hereby
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waives any claim, defense, demand, action or suit of any kind or nature
whatsoever against the Purchaser, the Operating Agent and the Collateral Agent
arising on or prior to the date hereof in connection with the Purchase Agreement
or the transactions contemplated thereunder.
8. Counterparts. Delivery of an executed counterpart of a signature
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page to this Amendment No. 1 and Waiver by facsimile shall be effective as
delivery of a manually executed counterpart of this Amendment No. 1 and Waiver.
This Amendment No. 1 and Waiver may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
9. Governing Law. This Amendment No. 1 and Waiver shall be governed
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by, and construed in accordance with, California law.
10. Effective Date of Amendment No. 1 and Waiver. Upon the execution
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and delivery of this Amendment No. 1 and Waiver by the parties hereto and the
satisfaction
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of the conditions precedent set forth in Section 4 herein, the Purchase
Agreement shall be amended by this Amendment No. 1 and Waiver, effective as of
the date hereof.
IN WITNESS WHEREOF, the Seller, the Collateral Agent, the Operating
Agent, the Servicer and the Purchaser have caused this Amendment No. 1 and
Waiver to be duly executed by their respective authorized officers as of the
date and year first above written.
MERISEL CAPITAL FUNDING, INC.
as Seller
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President & Treasurer
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
MERISEL AMERICAS, INC.
as Servicer
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President & Treasurer
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
GENERAL ELECTRIC CAPITAL
CORPORATION
as Purchaser
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Asst. Secretary
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
REDWOOD RECEIVABLES
CORPORATION
as Purchaser
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Asst. Secretary
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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