AMENDMENT No. 5 TO PURCHASE AGREEMENT AND WAIVER
AMENDMENT No. 5 TO PURCHASE AGREEMENT AND WAIVER, dated as of
May 12, 1999, among MERISEL AMERICAS, INC. ("Merisel Americas"), MERISEL CAPITAL
FUNDING, INC. ("Merisel Capital Funding"), REDWOOD RECEIVABLES CORPORATION
("Redwood") and GENERAL ELECTRIC CAPITAL CORPORATION ("GE Capital").
WHEREAS, Merisel Americas, as originator (in such capacity,
the "Originator") and Merisel Capital Funding are parties to an Amended and
Restated Receivables Transfer Agreement, dated as of September 27, 1996, as
amended by Amendment No. 1, dated as of November 7, 1996 and Amendment No. 2,
dated as of December 19, 1997 (the Transfer Agreement").
WHEREAS, Merisel Capital Funding, as seller (in such capacity,
the "Seller"), Redwood as purchaser (in such capacity, the "Purchaser"), GE
Capital, as operating agent (in such capacity, the "Operating Agent") and
collateral agent (in such capacity, the "Collateral Agent") and Merisel
Americas, as servicer (in such capacity, the "Servicer") are parties to an
Amended and Restated Receivables Purchase and Servicing Agreement, dated as of
September 27, 1996, as amended by Amendment No. 1, dated as of November 7, 1996,
Amendment No. 2, dated as of December 19, 1997, Amendment No. 3, dated as of
July 31, 1998 and Amendment No. 4, dated as of February 22, 1999 (the "Purchase
Agreement");
WHEREAS, the Seller and the Servicer have requested that the
Purchaser, the Operating Agent and the Collateral Agent waive and amend certain
financial covenants contained in the Purchase Agreement, subject to the terms
and conditions hereof.
WHEREAS, the parties hereto desire to amend the Purchase
Agreement (such amendments collectively referred to herein as these
"Amendments").
FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY
OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES HERETO,INTENDING TO BE LEGALLY
BOUND HEREBY, AGREE AS
FOLLOWS:
ARTICLE I
DEFINITIONS
All capitalized terms used herein, unless otherwise defined,
are used as defined in the Purchase Agreement.
ARTICLE II
AMENDMENT NO. 5 TO PURCHASE AGREEMENT
(a) Annex X of the Purchase Agreement is hereby amended by
adding the following definitions thereto:
"Turnberry Litigation" means the litigation between Parent and
Turnberry Capital Management, L.P., et al, filed in the Court of Chancery of the
State of Delaware in and for New Castle County.
"Turnberry Settlement" means the settlement of the Turnberry
Litigation set forth in the Turnberry Settlement Agreement.
"Turnberry Settlement Agreement" means that certain Settlement
Agreement, dated as of May 10, 1999, by and among Parent, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Stonington Partners, Inc., Turnberry Capital Management, L.P., Monarch
Management Group Ltd., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., Value Partners, Ltd., Dayton Special
Situations Fund, L.P., Daystar L.L.C., CoMac Partners, L.P., CoMac
International, N.V. and Tribeca Investments, L.L.C., evidencing the Turnberry
Settlement.
(b) Paragraph (a) under the heading "FINANCIAL COVENANTS" in
Exhibit H of the Purchase Agreement is hereby amended by inserting "(w)" after
the term "Exhibit H" the first time such term appears in the last sentence under
such heading and adding the following language at the end of such sentence:
"; and (x) for any period of four fiscal quarters that ends
before the Second Fiscal Quarter of 2000, $21 million relating to the loss
reserve to be recorded by the Parent in connection with the Turnberry Settlement
will be excluded (except to the extent of any net insurance proceeds collected
in connection with the Turnberry Settlement) and (y) for the calculation of
Tangible Net Worth at any time, an amount equal to $21 million minus the net
insurance proceeds, if any, collected in connection with the Turnberry
Settlement will be added to Tangible Net Worth."
ARTICLE III
WAIVER OF DEFAULT UNDER
TRANSFER AGREEMENT
The Operating Agent, the Collateral Agent and the Purchaser
agree to waive any default resulting from a breach of the representation set
forth in Section 4.01(a)(vii) of the Transfer Agreement; provided, that such
waiver shall apply solely to defaults (i) resulting from the Turnberry
Settlement period.
ARTICLE IV
CONDITIONS PRECEDENT
The effectiveness of these Amendments 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:
(a) A certificate of the Secretary of each of the Seller and
the Servicer, dated the date of these Amendments and certifying (i) 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 these Amendments, 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 and (ii) as
to the incumbency and specimen signature of each Person's officers executing
these Amendments, and all other documents required or necessary to be delivered
hereunder.
(b) A certificate of an officer of each of the Seller and the
Servicer, dated the date of these amendments, certifying that each of the
representations and warranties made by the Seller and the Servicer in these
Amendments is true and correct in all material respects as of the date hereof.
(c) The opinion of counsel to the Seller, in form and
substance reasonably satisfactory to the Purchaser, the Operating Agent and the
Collateral Agent, as to certain matters including, without limitation, (i) the
valid existence and good standing of the Seller and Servicer, (ii) the power and
authority of the Seller and Servicer (or Originator, as the case may be) to
execute the Amendments, (iii) the due authorization, execution and delivery of
the Amendments by the Seller and Servicer (or Originator, as the case may be),
(iv) the enforceability of the Amendments against the Seller and Servicer (or
Originator, as the case may be), and (v) that the execution and delivery of the
Amendments (x) does not conflict with the organizational documents of the Seller
or Servicer and (y) does not violate or constitute a default under any material
financing agreements of the Seller or Servicer.
(d) An Officer's Certificate in form and substance
satisfactory to the Operating Agent to the effect that all of representations
and warranties in the Transfer Agreement and Purchase Agreement are true and
correct in all material respects as of the date hereof.
(e) The Seller shall pay the fees and expenses of the
Purchaser incurred in connection with preparing these Amendments (including,
without limitation, reasonable legal fees and expenses).
ARTICLE V
SELLER'S AND SERVICER'S REPRESENTATIONS
AND WARRANTIES
Each of the Seller and the Servicer represents and warrants
that:
(a) these Amendments have been duly authorized, executed and
delivered pursuant to its corporation power;
(b) these Amendments constitute its legal, valid and binding
obligation subject to the effect of bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally; and
(c) after giving effect to the amendments referred to herein,
there does not exist any Termination Event.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Confirmation of Purchase Agreement. Each of the
Seller and the Servicer agree that, except for the specific amendments and
waiver set forth herein, 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
therewith to the "Purchase Agreement," shall mean the Purchase Agreement as
amended by these Amendments and as each such agreement may be hereinafter
amended or restated. Nothing herein shall obligate the Seller, the Servicer, the
Purchaser, the Operating Agent or the Collateral Agent to enter into any future
amendment (whether similar or dissimilar).
SECTION 6.2 Waiver by the Seller and Servicer. Except for
manifest errors on the part of the Operating Agent, each of the Seller and the
Servicer hereby 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.
SECTION 6.3 Counterparts. Delivery of an executed counterpart
of a signature page to these Amendments by facsimile shall be effective as
delivery of a manually executed counterpart of these Amendments. These
Amendments 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.
SECTION 6.4 Governing Law. These Amendments shall be
governed by, and construed in accordance with, California law.
SECTION 6.5 Effective Date of Amendments. Upon the execution
and delivery of these Amendments by the parties hereto and the satisfaction of
the conditions precedent set forth herein, the Purchase Agreement shall be
amended by these Amendments, effective as of the date hereof.
* * *
IN WITNESS WHEREOF, the Seller, the Servicer, the Collateral
Agent, the Operating Agent and the Purchaser have caused these Amendments 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/_________________________
Title:
Name:
MERISEL AMERICAS, INC.,
as Originator and Servicer
By:_/s/__________________________
Title:
Name:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Operating Agent and Collateral Agent
By:__/s/_________________________
Title:
Name:
REDWOOD RECEIVABLES CORPORATION,
as Purchaser
By:__/s/_________________________
Title:
Name: