FOURTH AMENDMENT TO
AMENDED AND RESTATED SENIOR NOTE PURCHASE AGREEMENT
This FOURTH AMENDMENT TO AMENDED AND RESTATED SENIOR NOTE
PURCHASE AGREEMENT (this "Amendment"), dated as of June 30, 1996,
is entered into by and among MERISEL AMERICAS, INC., a Delaware
corporation (the "Company"), MERISEL, INC., a Delaware
corporation ("Merisel, Inc.") and each of the Noteholders
identified on the signature pages hereof (collectively, the
"Noteholders" and individually, a "Noteholder"), and amends that
certain Amended and Restated Senior Note Purchase Agreement dated
as of December 23, 1993, by and among the Company and the
original Purchasers of the Notes therein referred to, as amended
by that certain First Amendment to Amended and Restated Senior
Note Purchase Agreement dated as of September 30, 1994, that
certain Second Amendment to Amended and Restated Senior Note
Purchase Agreement dated as of June 23, 1995 and that certain
Third Amendment and Waiver to Amended and Restated Senior Note
Purchase Agreement dated as of April 12, 1996 (as so amended, the
"Existing Senior Note Purchase Agreement", and as amended hereby,
the "Senior Note Purchase Agreement"). Capitalized terms used
and not otherwise defined in this Amendment shall have the same
meanings in this Amendment as set forth in the Existing Senior
Note Purchase Agreement.
RECITALS
The parties hereto have agreed to amend the Existing
Senior Note Purchase Agreement as hereinafter set forth in
accordance with Section 8.1 of the Existing Senior Note Purchase
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
and agreements set forth below and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree to amend the Existing Senior Note
Purchase Agreement as follows:
AGREEMENT
SECTION 1. Amendments. On the terms of this Amendment and
subject to the satisfaction of the conditions precedent set forth
in Section 3, the Existing Senior Note Purchase Agreement shall
be amended as follows:
a. The April 15 Letter referred to in clause (i) of
the definition of "Permitted Liens" is amended as set forth in
that certain letter dated as of June 30, 1996 among the Company,
Merisel, Inc. and the Noteholders (the "April 15 Letter
Amendment").
b. Section 6.37 of the Existing Senior Note
Purchase Agreement is amended to delete the figure therein which
reads "$475,000,000" opposite the period therein which reads "2nd
Quarter of 1996" and the figure "$420,000,000" for such period
shall be substituted in lieu thereof.
c. Section 7.1(e) of the Existing Senior Note
Purchase Agreement is amended to read in its entirety as follows:
"(e) Any representation or warranty made by the
Company or Merisel, Inc. herein or under the Third Amendment
and Waiver to Amended and Restated Senior Note Purchase
Agreement dated as of April 12, 1996 (the "Third Amendment")
among the Company, Merisel, Inc. and the Noteholders or
under the Fourth Amendment to Amended and Restated Senior
Note Purchase Agreement dated as of June 30, 1996 (the
"Fourth Amendment") among the Company, Merisel, Inc. and the
Noteholders, or made by the Company or Merisel, Inc. in any
statement or certificate furnished by the Company or
Merisel, Inc., as the case may be, in connection with the
consummation of the issuance of the Notes or otherwise
pursuant to this Agreement, the Third Amendment or the
Fourth Amendment, is untrue in any material respect as of
the date of the issuance or making thereof; or"
d. Section 7.3 of the Existing Senior Note Purchase
Agreement is amended in the following respects:
(1) The words therein which read "paragraphs
(c) through (h), inclusive," shall be deleted in each place
where they appear and the words "paragraphs (c) through (j),
inclusive, and paragraphs (n) through (t), inclusive," shall
be substituted in lieu thereof.
(2) The words therein which read "paragraph
(i), (j) or (k)" shall be deleted in each place where they
appear and the words "paragraph (k), (l) or (m)" shall be
substituted in lieu thereof.
(3) The last paragraph thereof shall be deleted
in its entirety.
e. Section 7.4 of the Existing Senior Note Purchase
Agreement is amended by deleting the words therein which read
"paragraphs (c) through (h), inclusive," and substituting the
words "paragraphs (c) through (j), inclusive, and paragraphs (n)
through (t), inclusive," in lieu thereof.
SECTION 2. Reaffirmation of Parent Guaranty. By its signature
below, Merisel, Inc. (i) consents to the amendment of the
Existing Senior Note Purchase Agreement by this Amendment, (ii)
acknowledges and reaffirms its obligations owing under the Parent
Guaranty and (iii) agrees that the Parent Guaranty is and shall
remain in full force and affect.
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SECTION 3. 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 all of the following
conditions precedent on or prior to August 12, 1996 (such date
being referred to herein as the "Condition Satisfaction Date"):
a. On or before the Condition Satisfaction Date,
the Company shall deliver to each of the Noteholders the
following described documents (each of which shall be reasonably
satisfactory in form and substance to the Noteholders and their
counsel):
(i) This Amendment duly executed by the
Company and Merisel, Inc.;
(ii) Reaffirmation and Consent of Guarantor,
duly executed by Merisel Europe, in substantially the form
attached hereto as Exhibit A (the "Europe Reaffirmation").
(iii) Reaffirmation and Consent of Guarantor,
duly executed by Merisel Canada, in substantially the form
attached hereto as Exhibit B (the "Canada Reaffirmation").
(iv) Copies of resolutions of the board of
directors of each of the Company and Merisel, Inc.
authorizing the transactions contemplated by this Amendment,
certified as of the Condition Satisfaction Date by a senior
officer of the Company or Merisel, Inc., as the case may be;
(v) Copies of resolutions of the board of
directors of Merisel Europe authorizing the transactions
contemplated by the Europe Guaranty, as reaffirmed by the
Europe Reaffirmation, certified as of the Condition
Satisfaction Date by a senior officer of Merisel Europe;
(vi) Copies of resolutions of the sole
shareholder of Merisel Canada authorizing the transactions
contemplated by the Canada Guaranty, as reaffirmed by the
Canada Reaffirmation, certified as of the Condition
Satisfaction Date by a senior officer of Merisel Canada;
(vii) A certificate of a senior officer of
each of the Company and Merisel, Inc. certifying (A) the
names and true signatures of the officers of the Company or
Merisel, Inc., as the case may be, authorized to execute,
deliver and perform, as applicable, on behalf of the Company
or Merisel, Inc., as the case may be, this Amendment, the
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Senior Note Purchase Agreement and the Parent Guaranty and
(B) that the certificate of incorporation and bylaws of the
Company and Merisel, Inc., as applicable, remain in full
force and effect as of the Condition Satisfaction Date and
have not been amended, modified, supplemented or otherwise
altered in any respect since April 15, 1996;
(viii) A certificate of a senior officer of
Merisel Europe certifying (A) the names and true signatures
of the officers of Merisel Europe authorized to execute,
deliver and perform, as applicable, on behalf of Merisel
Europe the Europe Reaffirmation and the Europe Guaranty and
(B) that the certificate of incorporation and bylaws of
Merisel Europe remain in full force and effect as of the
Condition Satisfaction Date and have not been amended,
modified, supplemented or otherwise altered in any respect
since April 15, 1996; and
(ix) A certificate of a senior officer of
Merisel Canada certifying (A) the names and true signatures
of the officers of Merisel Canada authorized to execute,
deliver and perform, as applicable, on behalf of Merisel
Canada the Canada Reaffirmation and the Canada Guaranty and
(B) that the certificate of articles of amalgamation and the
bylaws of Merisel Canada remain in full force and effect as
of the Condition Satisfaction Date and have not been
amended, modified, supplemented or otherwise altered in any
respect since April 15, 1996.
b. On or before the Condition Satisfaction Date,
the New Revolving Credit Agreement shall have been amended in a
manner reasonably satisfactory to each Noteholder and its counsel
and such amendment shall be in full force and effect and by their
execution and delivery hereof the Noteholders signatory hereto
shall have consented to such amendment to the New Revolving
Credit Agreement.
c. On or before the Condition Satisfaction Date,
the Subordinated Note Purchase Agreement shall have been amended
in a manner reasonably satisfactory to each Noteholder and its
counsel and such amendment shall be in full force and effect.
d. On or before the Condition Satisfaction Date,
the Company shall have paid to each Noteholder that shall have
executed and delivered by 5:00 p.m. (Los Angeles time) on August
9, 1996 counterpart signature pages to this Amendment and the
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April 15 Letter Amendment, an amendment fee in an amount equal to
(x) the greater of (A) 0.10% and (B) the percentage applicable to
any amendment fee that the Revolving Credit Lenders may be paid
in connection with the amendments similar to those effected by
this Amendment multiplied by (y) such Noteholder's Pro Rata Share
of the aggregate principal amount of Notes outstanding on the
Condition Satisfaction Date.
e. On or before the Condition Satisfaction Date,
the Company shall have paid all out-of-pocket costs, fees and
expenses required under Section 9.5 of the Senior Note Purchase
Agreement which were incurred up to the Condition Satisfaction
Date and evidenced by invoice delivered to the Company; and the
Company shall have complied with their deposit obligations with
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx as set forth in the OH&S Fee
Agreement.
f. On or before the Condition Satisfaction Date,
all corporate and other proceedings required to be taken in
connection with the transactions contemplated by this Amendment
shall have been taken.
g. All governmental actions or filings necessary
for the execution, delivery and performance of this Amendment
shall have been made, taken or obtained, and no order, statutory
rule, regulation, executive order, decree, judgment or injunction
shall have been enacted, entered, issued, promulgated or enforced
by any court or other governmental entity which prohibits or
restricts the transactions contemplated by this Amendment, nor
shall any action have been commenced or, to the Company's or
Merisel, Inc.'s knowledge, threatened seeking any injunction or
any restraining or other order to prohibit, restrain, invalidate
or set aside the transactions contemplated by this Amendment.
h. The representations and warranties set forth
in this Amendment shall be true and correct in all material
respects as of the Condition Satisfaction Date.
SECTION 4. Representations and Warranties. In order to
induce the Noteholders to enter into this Amendment and amend the
Existing Senior Note Purchase Agreement in the manner provided in
this Amendment, each of the Company and Merisel, Inc. represents
and warrants to each Noteholder as of the Condition Satisfaction
Date as follows:
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a. Corporate Existence and Power. Each of the
Company, Merisel, Inc., Merisel Europe and Merisel Canada:
(i) is a corporation duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its formation;
(ii) has the power and authority and all
governmental licenses, authorizations, consents and
approvals to own its assets and carry on its business and to
execute, deliver, and perform its obligations under, and
carry out the transactions contemplated by, as applicable,
the Amendment, the Senior Note Purchase Agreement, the
Notes, the Parent Guaranty, the Europe Reaffirmation, the
Europe Guaranty, the Canada Reaffirmation and the Canada
Guaranty;
(iii) is duly qualified as a foreign
corporation and is licensed and in good standing under the
laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business
requires such qualification or license or where the failure
so to qualify would not have a material adverse effect on
the condition (financial or otherwise), business or
prospects of Merisel, Inc. and its Subsidiaries taken as a
whole; and
(iv) is in material compliance with all
material requirements of law.
b. Corporate Authorization; No Contravention.
The execution and delivery of this Amendment and the Notes, and
performance of the Senior Note Purchase Agreement, the Notes and
the Parent Guaranty, by the Company and Merisel, Inc., as
applicable, and the execution and delivery of the Europe
Reaffirmation and the Canada Reaffirmation, and performance of
the Europe Guaranty and the Canada Guaranty, by Merisel Europe
and Merisel Canada, as applicable, have been duly authorized by
all necessary corporate action on behalf of such Person and do
not and will not:
(i) contravene the terms of any of such
Person's certificate of incorporation or bylaws;
(ii) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any
document evidencing any Contractual Obligation to which such
Person is a party or any order, injunction, writ or decree
of any federal, state or other governmental authority or
regulatory body to which such Person or its property is
subject where such conflict, breach, contravention or Lien
could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), business
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or prospects of Merisel, Inc. and its Subsidiaries taken as
a whole; or
(iii) violate any material requirement of law.
c. Governmental Authorization. No approval,
consent, exemption, authorization, or other action by, or notice
to, or filing with, any federal, state or other governmental
authority or regulatory body is necessary or required in
connection with (i)Ethe execution and delivery of this Amendment
and performance of the Senior Note Purchase Agreement, the Notes
and the Parent Guaranty, by the Company and Merisel, Inc., as
applicable, and the execution and delivery of the Europe
Reaffirmation and the Canada Reaffirmation, and performance of
the Europe Guaranty and the Canada Guaranty, by Merisel Europe
and Merisel Canada, as applicable, or (ii)Ethe continued
operation of Merisel, Inc.'s or any of its Subsidiaries' business
as contemplated to be conducted after the date hereof by the
Senior Note Purchase Agreement, except in each case such
approvals, consents, exemptions, authorizations or other actions,
notices or filings (A)Eas have been obtained, (B)Eas may be
required under state securities or Blue Sky laws, (C)Eas are of a
routine or administrative nature and are either (x)Enot
customarily obtained or made prior to the consummation of
transactions such as the transactions described in clauses (i) or
(ii) or (y)Eexpected in the judgment of any such Person to be
obtained in the ordinary course of business subsequent to the
consummation of the transactions described in clauses (i) or
(ii), or (D) that, if not obtained, could reasonably be expected
to have a material adverse effect on the condition (financial or
otherwise), business or prospects of Merisel, Inc. and its
Subsidiaries taken as a whole.
d. Binding Effect. The Senior Note Purchase
Agreement and the Notes constitute the legal, valid and binding
obligation of the Company; the Senior Note Purchase Agreement and
the Parent Guaranty constitute the legal, valid and binding
obligation of Merisel, Inc.; and the Europe Guaranty and the
Canada Guaranty constitute the legal, valid and binding
obligations of Merisel Europe and Merisel Canada, respectively,
in each case, in accordance with their respective terms, except
as enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating
to enforceability.
e. No Default. After giving effect to this
Amendment, no Default or Event of Default exists or would result
from the transactions contemplated by this Amendment. As of the
Condition Satisfaction Date and giving effect to any amendment
received by Merisel, Inc. or any of its Subsidiaries on the
Condition Satisfaction Date, including, without limitation, this
Amendment, neither the Company, Merisel, Inc. nor any Affiliate
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of the Company or Merisel, Inc. is in default under or with
respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, could reasonably
be expected to have a material adverse effect on the condition
(financial or otherwise), business or prospects of Merisel, Inc.
and its Subsidiaries taken as a whole, or that would, if such
default had occurred after the Condition Satisfaction Date,
create an Event of Default under subsection 7.1(c) of the Senior
Note Purchase Agreement.
f. Financial Statements. (i) The Noteholders
have been furnished with an unaudited consolidated balance sheet
of Merisel, Inc. as of March 31, 1996, and related unaudited
consolidated statements of income, cash flow and changes in
stockholders' equity for the fiscal quarter ended on said date.
Such financial statements have been prepared in accordance with
GAAP consistently applied, present fairly the consolidated
financial position of Merisel, Inc. as of such date, and the
consolidated results of operations and changes in cash flows and
stockholders' equity for such period.
(ii) Since March 31, 1996, there has been no material
adverse change in the Assets, business, profits, or condition
(financial or otherwise) of Merisel, Inc. or its Subsidiaries,
taken as a whole, as shown on the financial statements referenced
above.
g. Representations and Warranties in the
Existing Senior Note Purchase Agreement. The Company confirms
that as of the Condition Satisfaction Date the representations
and warranties contained in the Existing Senior Note Purchase
Agreement remain (before and after giving effect to this
Amendment) true and correct in all material respects, except to
the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct
in all material respects as of such earlier date.
SECTION 5. Miscellaneous.
a. Reference to and Effect on the Existing
Senior Note Purchase Agreement and the April 15 Letter.
(i) Except as specifically amended by this
Amendment and the April 15 Letter Amendment, and the
documents executed and delivered in connection therewith,
the Existing Senior Note Purchase Agreement and the April 15
Letter, respectively, shall remain in full force and effect
and are hereby ratified and confirmed.
(ii) The execution, delivery and performance
of this Amendment and the April 15 Letter Amendment shall
not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any
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right, power or remedy of the Noteholders under, the
Existing Senior Note Purchase Agreement.
(iii) Upon the conditions precedent set forth
herein being satisfied, all references to the Senior Note
Purchase Agreement shall be deemed to be references to the
Existing Senior Note Purchase Agreement as amended by this
Amendment.
(iv) Upon the conditions precedent set forth
herein being satisfied, all references to the April 15
Letter shall be deemed to be references to the April 15
Letter as amended by the April 15 Letter Amendment.
b. Fees and Expenses. The Company acknowledges
that all out-of-pocket costs, fees and expenses incurred in
connection with this Amendment will be paid in accordance with
Section 9.5 of the Existing Senior Note Purchase Agreement; and
the Company further acknowledges that its deposit obligations
with Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx will be complied with in
accordance with the OH&S Fee Agreement.
c. Post-Closing Amendment Fees. The Company
agrees to promptly pay to each Noteholder that shall have
executed and delivered subsequent to 5:00 p.m. (Los Angeles time)
on August 9, 1996 and prior to 5:00 p.m. (Los Angeles time) on
August 20, 1996 counterpart signature pages to this Amendment and
the April 15 Letter Amendment, the amendment fee referred to in
Section 3.d. of this Amendment; provided however that if
Noteholders sufficient to constitute the Required Noteholders
shall not have executed and delivered by 5:00 p.m. (Los Angeles
time) on August 9, 1996, counterpart signature pages to this
Amendment and the April 15 Letter Amendment or the conditions
precedent set forth in Section 3 above have not been satisfied or
waived on or prior to the Condition Satisfaction Date, the
Company shall have no obligation to pay any amendment fees
pursuant to this Section 5.c. Failure by the Company to comply
with this provision shall constitute an Event of Default under
the Senior Note Purchase Agreement.
d. Headings. Section and subsection headings in
this Amendment are included for convenience of reference only and
shall not constitute a part of this Amendment for any other
purpose or be given any substantive effect.
e. Counterparts. This Amendment may be executed
in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the
same instrument.
f. Complete Agreement. The Senior Note Purchase
Agreement, together with the exhibits and schedules thereto, the
Notes, the Parent Guaranty, the Canada Guaranty, the Europe
Guaranty, the April 11 Letter, the April 12 Letter, the April 14
Letter and the April 15 Letter, the Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx Fee Agreement, the Xxxxxxxx Fee Agreement, the April 15
Letter Amendment and the other agreements referred to herein or
therein, is intended by the parties as a final expression of
their agreement and is intended as a complete statement of the
terms and conditions of their agreement.
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(g) Governing Law. This Amendment shall be
governed by and construed according to the laws of the State of
California.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
"Company"
MERISEL AMERICAS, INC.,
a Delaware corporation
By:
Name:
Title:
"Merisel, Inc."
MERISEL, INC.,
a Delaware corporation
By:
Name:
Title:
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"Noteholders"
_____% XXXXXXX, XXXXX & CO.
By:
Name:
Title:
_____% PRINCIPAL MUTUAL LIFE
INSURANCE COMPANY
By:
Name:
Title:
By:
Name:
Title:
____% FIRST AUSA LIFE INSURANCE COMPANY
By:
Name:
Title:
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____% PFL LIFE INSURANCE COMPANY
By:
Name:
Title:
____% LIFE INVESTORS INSURANCE COMPANY
OF AMERICA
By:
Name:
Title:
____% BANKERS UNITED LIFE ASSURANCE
COMPANY
By:
Name:
Title:
____% INTERNATIONAL LIFE INVESTORS
INSURANCE COMPANY
By:
Name:
Title:
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____% INCE & CO., as nominee for
THE CANADA LIFE ASSURANCE COMPANY
By:
Name:
Title:
____% XXXXXXXX & CO., as nominee for
CANADA LIFE INSURANCE COMPANY OF
AMERICA
By:
Name:
Title:
____% AMERITAS LIFE INSURANCE CORP.
By: Ameritas Investment Advisors,
Inc., as Agent
By:
Name:
Title:
____% PROVIDENT MUTUAL LIFE INSURANCE
COMPANY OF PHILADELPHIA
By:
Name:
Title:
____% PROVIDENT MUTUAL LIFE AND ANNUITY
COMPANY OF AMERICA
By:
Name:
Title:
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EXHIBIT A
Reaffirmation and Consent of Guarantor
All capitalized terms used and not otherwise defined
in this Reaffirmation and Consent of Guarantor (this
"Reaffirmation and Consent") shall have the same meanings in
this Reaffirmation and Consent as set forth in that certain
Fourth Amendment to Amended and Restated Senior Note Purchase
Agreement dated as of June 30, 1996 (the "Amendment").
The undersigned hereby (a) represents and warrants to
the Noteholders that the execution, delivery, and performance of
this Reaffirmation and Consent are within its corporate powers,
have been duly authorized by all necessary corporate action, and
are not in contravention of any law, rule, or regulation, or any
order, judgment, decree, writ, injunction, or award of any
arbitrator, court, or governmental authority, or of the terms of
its charter or bylaws, or of any contract or undertaking to
which it is a party or by which any of its properties may be
bound or affected; (b) consents to the amendment of the Existing
Senior Note Purchase Agreement by the Amendment; (c)
acknowledges and reaffirms its obligations owing under the
Europe Guaranty; and (d) agrees that (i) the Europe Guaranty
shall remain in full force and effect and hereby is ratified and
confirmed in all respects, and (ii) the execution, delivery, and
performance hereof shall not operate as a waiver, or except as
expressly set forth herein, as an amendment, of any right, power
or remedy of the Noteholders under the Europe Guaranty, as in
effect prior to the date hereof, or any further or other matter.
DATED as of June 30, 1996.
MERISEL EUROPE, INC.
By:
Name:
Title:
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EXHIBIT B
Reaffirmation and Consent of Guarantor
All capitalized terms used and not otherwise defined
in this Reaffirmation and Consent of Guarantor (this
"Reaffirmation and Consent") shall have the same meanings in
this Reaffirmation and Consent as set forth in that certain
Fourth Amendment to Amended and Restated Senior Note Purchase
Agreement dated as of June 30, 1996 (the "Amendment").
The undersigned hereby (a) represents and warrants to
the Noteholders that the execution, delivery, and performance of
this Reaffirmation and Consent are within its corporate powers,
have been duly authorized by all necessary corporate action, and
are not in contravention of any law, rule, or regulation, or any
order, judgment, decree, writ, injunction, or award of any
arbitrator, court, or governmental authority, or of the terms of
its articles or bylaws, or of any contract or undertaking to
which it is a party or by which any of its properties may be
bound or affected; (b) consents to the amendment of the Existing
Senior Note Purchase Agreement by the Amendment; (c)
acknowledges and reaffirms its obligations owing under the
Canada Guaranty; and (d) agrees that (i) the Canada Guaranty
shall remain in full force and effect and hereby is ratified and
confirmed in all respects, and (ii) the execution, delivery, and
performance hereof shall not operate as a waiver, or except as
expressly set forth herein, as an amendment, of any right, power
or remedy of the Noteholders under the Canada Guaranty, as in
effect prior to the date hereof, or any further or other matter.
DATED as of June 30, 1996.
MERISEL CANADA INC.
By:
Name:
Title:
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