AMENDMENT #5 TO VANSTAR CORPORATION
SECOND AMENDED AND RESTATED FINANCING PROGRAM AGREEMENT
This Amendment to Vanstar Corporation Second Amended and Restated
Financing Program Agreement (this "Amendment") is made as of September 25,
1996, by and between Vanstar Corporation, a Delaware corporation ("Borrower")
and IBM Credit Corporation, a Delaware corporation ("IBM Credit").
RECITALS
A. Borrower and IBM Credit have entered into that certain Vanstar
Corporation Second Amended and Restated Financing Program Agreement dated as of
April 30, 1995 (as amended by Amendment #1 dated as of September 15, 1995,
Amendment #2 dated as of October 26, 1995 and Amendment #3 dated as of November
10, 1995, and as the same may be further amended, supplemented or as otherwise
modified from time to time, the "Agreement").
B. Borrower proposes to enter into the VFT Transaction (as such term is
defined in Section 3.K. of this Amendment), pursuant to which Borrower, among
other things, expects to issue not less than $100,000,000 principal amount of
its convertible debentures (including over-allotments), as is more fully
described in the preliminary Offering Circular of Vanstar Financing Trust dated
September 12, 1996 (the "Offering Circular"), the net proceeds of which will be
used to reduce Borrower's outstanding indebtedness to IBM Credit under the
Agreement. Borrower has requested IBM Credit to consent to the consummation of
the VFT Transaction and to enter into this Amendment in order to amend the
Agreement to reflect the consummation thereof, which IBM Credit is willing to do
on the basis set forth herein.
C. The parties have agreed to modify the Agreement as more specifically
set forth below, upon and subject to the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Borrower and IBM Credit hereby agree as follows:
Section 1. DEFINITIONS. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Agreement.
Section 2. CONSENT. IBM Credit hereby consents to the consummation by
Borrower of the VFT Transaction. At the closing of the VFT Transaction,
Borrower shall promptly remit to IBM Credit, for application to Borrower's
outstanding indebtedness to IBM Credit under the Agreement, the proceeds of the
issuance of the Convertible Debentures (as such term is defined in Section 3.K.
of this Amendment), net of all underwriting and other discounts and commissions
and all closing and other costs incurred by Borrower or VFT in connection with
the VFT Transaction.
Section 3. AMENDMENTS. Each of the following amendments shall be
effective upon the closing of the VFT Transaction:
A. Section 1 of the Agreement is hereby amended by deleting from the
third and fourth lines thereof the amount "Four Hundred Fifty Million Dollars
($450,000,000)" and substituting, in lieu thereof, the amount of "Three Hundred
Million Dollars ($300,000,000)."
B. Section 2(A) is hereby amended by adding the following paragraph
at the end of such section:
"Notwithstanding any other provision of this Agreement, Borrower
shall not be required to furnish to IBM Credit any financial
statements of VFT."
C. Section 6(b) is hereby amended by adding the following sentence
at the end of such section:
"Notwithstanding any other provision of this Agreement, no
security interest is granted by Borrower to IBM Credit in the
Common Securities."
D. Section 11(a)(xi) is hereby amended by amending the second
sentence of such section to read as follows:
"Other than the Guarantor Subsidiaries and VFT, which shall not
in any event be a Guarantor Subsidiary, Borrower has no direct or
indirect subsidiaries that own, lease or possess any assets or
conduct any business."
E. Section 11(b)(xi) is hereby amended by adding a new subsection
(J) at the end thereof to read as follows:
"and (J) immediately upon receipt thereof, any material
notice given or received by Borrower under or pursuant to
the Indenture providing for the issuance of the Convertible
Debentures.
F. Section 11(c)(iii)(B) is hereby amended by adding the following
clause at the beginning of such subsection (B):
"except for redemptions by VFT of the Common Securities and
Preferred Securities by distribution of the Convertible
Debentures pursuant to the provisions of the Indenture by reason
of the occurrence of a Tax Event or Investment Company Event (as
such terms are defined in the Indenture),"
G. Section 11(c)(v) is hereby amended by adding a new subsection (C)
to the first sentence of such section after the words "Long-term Debt" on the
eighth line of such section to read as follows:
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"or (C) redemptions or payments by Borrower or VFT of the
Preferred Securities by distribution of the Convertible
Debentures pursuant to the provisions of the instruments
governing such securities by reason of the occurrence of a Tax
Event or Investment Company Event."
H. Section 11(c)(v) is hereby amended by adding the following
sentence at the end of such section:
"For purposes of this subsection (v), any payments of interest on
the Convertible Debentures or the Preferred Securities that have
been deferred pursuant to the provisions of the instruments
governing such indebtedness, together with any liquidated damages
and other amounts payable by reason of such deferral or
otherwise, shall constitute scheduled payments on such
indebtedness."
I. Section 11(c)(vi) is hereby amended by amending subsection (B)
thereof to read in its entirety as follows:
"(B) permit any Subsidiary other than the Guarantor Subsidiaries
set forth in Part II of Schedule 3 and, to the extent necessary
to carry out the transactions described in the Offering Circular,
VFT to own, lease or possess any assets or conduct any business;"
J. Section 11(c)(viii) of the Agreement is hereby amended by adding
new subsections (G), (H) and (I) at the end thereof to read as follows:
"(G) the Convertible Debentures;
(H) with respect to VFT, the Preferred Securities; and
(I) the VFT Guarantee."
K. Section 11(c)(x) of the Agreement is hereby amended by adding new
subsections (G) and (H) at the end thereof to read as follows:
"(G) the Investment by Borrower in VFT as described in the
Offering Circular;
(H) the Investment by VFT in the Convertible Debentures."
L. Section 11(c)(xi) is hereby amended by adding the following
clause at the beginning of such section:
"Except for the VFT Transaction as described in the Offering
Circular" and
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M. Section 11(c)(xiv)(C)(1) of the Agreement is hereby amended by
adding the following clause at the beginning of such subsection (1):
"except as provided in connection with the VFT Transaction as
described in the Offering Circular,"
N. Section 11(c) (xv) is hereby added to the Agreement to read as
follows:
"(xv) For so long as any Default or Event of Default shall
have occurred and shall be continuing, or shall occur after
giving effect to such redemption, elect to redeem the
Convertible Debentures or the Preferred Securities, except
for redemptions by VFT of the Common Securities and
Preferred Securities by distribution of the Convertible
Debentures pursuant to the provisions of the Indenture by
reason of the occurrence of a Tax Event or Investment
Company Event."
O. Section 13 (a) of the Agreement is hereby amended by adding a new
subsection (xi) at the end thereof to read as follows:
"or (xi) the occurrence of any event that gives holders of
the Convertible Debentures or the Preferred Securities the
right to accelerate the maturity of such Convertible
Debentures or Preferred Securities unless such event is
cured or waived by the first to occur (A) thirty (30) days
after such occurrence or (B) the required payment date
associated with such acceleration."
P. Section 19 is hereby amended by adding the following definitions
thereto:
"Common Securities" shall mean the common securities issued
by VFT to Borrower pursuant to the Indenture.
"Convertible Debentures" shall mean the Convertible
Debentures due 2016 issued by Borrower described in the Offering
Circular.
"Indenture" shall mean the Indenture among VFT and the
individuals and entities selected to serve as trustees of VFT.
"Preferred Securities" shall mean the Convertible Preferred
Securities issued by VFT pursuant to the Indenture.
"VFT" shall mean Vanstar Financing Trust, a Delaware
statutory business trust.
"VFT Guarantee" shall mean the Guarantee by Borrower for
benefit of the holders of the Convertible Preferred Securities.
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"VFT Transaction" shall mean the transaction described in
the preliminary Offering Circular of VFT dated September 12, 1996
whereby, among other actions, (i) VFT shall issue and Borrower
shall acquire all of the Common Securities, (ii) VFT shall issue
the Preferred Securities, (iii) Borrower shall issue to VFT the
Convertible Debentures, (iv) Borrower shall have undertaken to
file a shelf registration statement in respect of the Preferred
Securities, the VFT Guarantee and the Convertible Debentures, and
(v) Borrower shall execute and deliver the VFT Guarantee.
Q. Schedule 3 of the Agreement is hereby amended to add VFT as a
Subsidiary of Borrower in Part 1 thereof.
Section 4. REPRESENTATIONS AND WARRANTIES. Borrower makes IBM Credit
the following representations and warranties all of which are material and are
made to induce IBM Credit to enter into this Amendment.
Section 4.1 ACCURACY AND COMPLETENESS OF WARRANTIES AND REPRESENTATIONS.
All representations made by Borrower in the Agreement were true and accurate and
complete in every respect as of the date made, and, as amended by this
Amendment, all representations made by Borrower in the Agreement are true,
accurate and complete in every material respect as of the date hereof, and do
not fail to disclose any material fact necessary to make representations not
misleading.
Section 4.2 VIOLATION OF OTHER AGREEMENTS. The execution and delivery
of this Amendment and the performance and observance of the covenants to be
performed and observed hereunder do not violate or cause Borrower not to be in
compliance with the terms of any agreement to which Borrower is a party.
Section 4.3 LITIGATION. Except as has been disclosed by Borrower to IBM
Credit in writing, there is no litigation, proceeding, investigation or labor
dispute pending or threatened against Borrower, which if adversely determined,
would materially adversely affect Borrower's ability to perform Borrower's
obligations under the Agreement and the other documents, instruments and
agreements executed in connection therewith or pursuant hereto.
Section 4.4 ENFORCEABILITY OF AMENDMENT. This Amendment has been duly
authorized, executed and delivered by Borrower and is enforceable against
Borrower in accordance with its terms.
Section 5. RATIFICATION OF AGREEMENT. Except as specifically amended
hereby, all of the provisions of the Agreement shall remain unamended and in
full force and effect. Borrower hereby, ratifies, confirms and agrees that the
Agreement, as amended hereby, represents a valid and enforceable obligation of
Borrower, and is not subject to any claims, offsets and or defense.
Section 6. GOVERNING LAW. This Amendment shall be governed by and
interpreted in accordance with the laws of the State of California.
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Section 7. COUNTERPARTS. This Amendment may be executed in any number
of counterparts, each of which shall be an original and all of which shall
constitute one agreement.
Section 8. CONFIDENTIALITY. All information contained in this
Amendment regarding the VFT Transaction, including the information contained in
the preliminary Offering Circular of VFT dated September 12, 1996, shall be
maintained in confidence by IBM Credit and shall not be publicly disclosed to
any person or entity. No offer of securities is intended, or should be implied,
by the delivery to IBM Credit of such preliminary Offering Circular.
Section 9. FINANCIAL COVENANTS. Borrower and IBM Credit shall after the
execution of this Amendment negotiate in good faith revisions to the financial
covenants contained in Section 12 of the Agreement to be effective prior to
January 15, 1997.
IN WITNESS WHEREOF, this Amendment has been duly executed by the authorized
officers of the undersigned as of the day and year first above written.
VANSTAR CORPORATION
By: /s/ H. XXXXXXXXXXX XXXXXXXXX
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Title: Senior Vice President, General Counsel,
and Secretary
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Accepted and Agreed:
IBM CREDIT CORPORATION
By: /s/ XXXX XXXXX
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Title: Credit Manager
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