AMENDMENT NO. 3 TO
LOAN AND SECURITY AGREEMENT
This Amendment No. 3 to Loan and Security Agreement is made as
of March 10, 2000 by and among each of the undersigned and amends that certain
Loan and Security Agreement dated as of June 30, 1998, as previously amended by
Amendment No. 1 to Loan and Security Agreement dated as of May 11, 1999, and
Amendment No. 2 to Loan Agreement dated as of September 30, 1999 (the "Loan
Agreement"), by and among the financial institutions listed on the signature
pages thereof as lenders (such financial institutions, together with their
respective successors and assigns, are referred to hereinafter each individually
as a "Lender" and collectively as the "Lenders"), Bank of America, National
Association (formerly known as BankAmerica Business Credit, Inc.), a Delaware
corporation, as agent for the Lenders (in its capacity as agent, the "Agent"),
and Merisel Americas, Inc., a Delaware corporation (the "Borrower"). Capitalized
terms used herein without definition have the meanings assigned thereto in the
Loan Agreement.
RECITALS
A. The Borrower has requested that the Loan Agreement be amended and
modified as provided herein, and certain proposed actions by the Borrower be
consented to by the Agent and the Lenders, all as more fully described below.
B. On the terms and subject to the conditions set forth in this
Amendment, the Borrower, the Agent and the Lenders, have agreed to the
amendments and waivers to the Loan Agreement as set forth below.
AGREEMENT
In consideration of the foregoing, and for good and valuable
consideration, the receipt of which is hereby acknowledged, the undersigned
hereby agree as follows:
ARTICLE 1
AMENDMENTS AND WAIVERS TO LOAN AND SECURITY AGREEMENT
1.1 Amendment to the Definition of "Applicable Margin". The definition
of "Applicable Margin" set forth in Section 1.1 of the Loan Agreement is hereby
amended by deleting such definition in its entirety, and inserting in its place
the following:
"`Applicable Margin' means (i) with respect to Base Rate Revolving
Loans, .75%; and (ii) with respect to LIBOR Revolving Loans, 3.00%."
1.2 Capital Expenditures Definition. A new definition of "Capital
Expenditures" is added to Section 1.1 of the Loan
Agreement as follows:
"`Capital Expenditures' means expenditures of the Borrower to acquire
fixed assets and improvements which should be capitalized in accordance
with GAAP, excluding (i) such expenditures used to replace or repair
assets that are financed with insurance proceeds, settlement proceeds
or condemnation proceeds, (ii) assets purchased with the trade in of
existing assets to the extent of the trade-in credit, and (iii)
expenditures to replace certain assets sold, transferred or otherwise
disposed of to the extent of the proceeds realized from such sale,
transfer or disposition of such asset."
1.3 Cash Flow Definition. A new definition of "Cash Flow" is
added to Section 1.1 of the Loan Agreement as follows:
"`Cash Flow' means, for any period, the total of (a) Consolidated Net
Earnings for such period plus the sum of the following to the extent
deducted in computing Consolidated Net Earnings for such period: (i)
tax expense or provision for taxes, (ii) total interest expense net of
interest income, (iii) total amortization expense, (iv) total
depreciation expense, and (v) other non-cash expenses deducted in
computing Consolidated Net Earnings, minus (b) total interest expense
of the Borrower paid to Persons that are not Affiliates of the Borrower
net of interest income of the Borrower in such period, minus (c) 80% of
interest paid under the Indenture during such period, and minus (d)
total Capital Expenditures in such period."
1.4 Consolidated Net Earnings Definition. A new definition of
"Consolidated Net Earnings" is added to Section 1.1 of
the Loan Agreement as follows:
"`Consolidated Net Earnings' means, with respect to any fiscal period
of the Borrower, the Borrower's and its Subsidiaries' consolidated net
income after provision for income taxes for such fiscal period, as
determined in accordance with GAAP and reported on the Financial
Statements for such period, excluding (without duplication) any and all
of the following included in such net income: (a) gain (net of any
taxes paid or accrued for in accordance with GAAP) or loss arising from
the sale of any capital assets; (b) gain (net of any deferred taxes
liability accrued for in accordance with GAAP) arising from any
write-up in the book value of any asset or loss arising from any write
down of any asset (other than Inventory, Accounts or accounts payable);
(c) earnings (net of any taxes paid or accrued for in accordance with
GAAP) or losses of any corporation, substantially all the assets of
which have been acquired by the Borrower in any pooling of interests
transaction, to the extent realized by such other corporation prior to
the date of acquisition; (d) earnings of any nonconsolidated business
entity in which the Borrower has an ownership interest unless (and only
to the extent) such earnings shall actually have been received by the
Borrower in the form of cash distributions (net of any taxes paid or
accrued for in accordance with GAAP); (e) earnings (net of any taxes
paid or accrued for in accordance with GAAP) of any Person to which a
substantial part of the assets of the Borrower shall have been sold,
transferred or disposed of, or into which the Borrower shall have been
merged, or which has been a party with the Borrower to any
consolidation or other form of reorganization, prior to the date of
such transaction; (f) gain (net of any taxes paid or accrued for in
accordance with GAAP) or loss arising from the acquisition of debt or
equity securities of the Borrower or from cancellation or forgiveness
of debt; and (g) any other extraordinary non-recurring gains (net of
any taxes paid or accrued for in accordance with GAAP) or losses (other
than losses arising from any write down of Inventory, Accounts or
accounts payable)."
1.5 Amendment to the Definition of "Excluded Assets". The definition of
"Excluded Assets" set forth in Section 1.1 of the Loan Agreement is hereby
amended by deleting subpart (iv) of such definition in its entirety, and
inserting in its place the following:
"(iv) inventory which after the date of this Agreement becomes subject
to agreements with vendors or floor plan creditors that prohibit the
granting of an Agent's Lien on inventory sold by such vendor or
financed by such floor plan creditor, provided that upon the Agent's
receiving written notice from Borrower (by overnight mail or confirmed
facsimile) of the entering into of any such agreement, the Agent's Lien
in such inventory shall be released on the eleventh day following the
Agent's receipt of such notice; provided that such release (and the
exclusion from Inventory described in the preceding clause (iii) and
this clause (iv)) shall only be for the period any such prohibition is
in effect."
1.6 Amendment to the Definition of "Interest Coverage Ratio". The
definition of "Interest Coverage Ratio" set forth in Section 1.1 of the Loan
Agreement is hereby amended by deleting such definition in its entirety, and
inserting in its place the following:
"`Interest Coverage Ratio' means, for any period, the ratio of (a)
Consolidated Net Earnings for such period plus the sum of the following
to the extent deducted in computing Consolidated Net Earnings: (i) tax
expense or provision for taxes, (ii) total interest expense net of
interest income, (iii) total amortization expense, (iv) total
depreciation expense, and (v) other non-cash expenses deducted in
computing Consolidated Net Earnings, over (b) total interest expense of
the Borrower paid to Persons that are not Affiliates of the Borrower
during such period (net of interest income) and 80% of interest paid
under the Indenture during such period."
1.7 Amendment to the Definition of "Inventory Mix Reserve Percentage".
The definition of "Inventory Mix Reserve Percentage" set forth in Section 1.1 of
the Loan Agreement is hereby amended by deleting such definition in its
entirety, and inserting in its place the following:
"`Inventory Mix Reserve Percentage' means the quotient, expressed as a
percentage, of the following:
1 - 80% *(OLV);
50
where OLV means the amount determined by the Agent as the realizable
value of Eligible Inventory (expressed as a percentage of cost)
calculated based on the methodology of the Dovetech, Inc. appraisal
most recently submitted to Agent pursuant to Section 6.5; provided,
however, that (i) the Inventory Mix Reserve Percentage shall be
re-determined if, when the Borrowing Base Certificate for the prior
fiscal month-end is delivered, the ratio of (x) the value of the
Inventory described in clauses (iii) and (iv) of the definition of
Excluded Assets to (y) the value of Eligible Inventory, first exceeds
10% of the value of Eligible Inventory and thereafter, when such ratio
is (a) greater than or equal to the next highest integral multiple of
5% in excess of such ratio for the immediately preceding fiscal month
and (b) less than or equal to the highest integral multiple of 5% that
is less than such ratio for the immediately preceding fiscal month;
(ii) as of the Closing Date, the Inventory Mix Reserve Percentage shall
be 9.90%; and (iii) at no time shall the Inventory Mix Reserve
Percentage be less than zero."
1.8 Amendment to the Definition of "Permitted Liens". The definition of
"Permitted Liens" set forth in Section 1.1 of the Loan Agreement is hereby
amended by deleting subparagraph (g) of such definition in its entirety, and
inserting in its place the following:
"(g) Liens constituting vendor or floor plan creditor liens existing on
the Closing Date (the Agent's Lien shall be junior to such Liens,
provided that the applicable agreement between Borrower and the vendor
or floor plan creditor thereof does not prohibit the granting of junior
liens) and Liens created after the Closing Date on any inventory
(including, without limitation, Inventory) in favor of such vendor
thereof or floor plan creditor relating to such inventory securing the
unpaid purchase price and amounts relating to such Inventory (including
interest and fees) owing to such vendor or floor plan creditor;
provided, however, that the Vendor Obligations and amounts of Inventory
that at any relevant time are subject to the Liens described in this
clause (g), shall be reflected on applicable Borrowing Base
Certificates and that the Impaired Inventory Percentage shall not
exceed 50%;"
1.9 Property Definition. A new definition of "Property" is added
to Section 1.1 of the Loan Agreement as follows:
"`Property' means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible."
1.10 Amendment to Letter of Credit Fee Section. Section 3.6 of the Loan
Agreement is hereby amended by deleting such section in its entirety, and
inserting in its place the following:
"3.6 Letter of Credit Fee. The Borrower agrees to pay to the Agent, for
the ratable account of the Lenders, for each Letter of Credit, a fee
(the "Letter of Credit Fee") equal to 3.00% per annum of the undrawn
face amount of each Letter of Credit issued for the Borrower's account
at the Borrower's request, plus all reasonable out-of-pocket costs,
fees and expenses incurred by the Agent in connection with the
application for, issuance of, or amendment to any Letter of Credit, as
such fees are determined according to Schedule 3.6. The Letter of
Credit Fee shall be payable monthly in arrears on the first day of each
month following any month in which a Letter of Credit was issued and/or
in which a Letter of Credit remains outstanding. The Letter of Credit
Fee shall be computed on the basis of a 360-day year for the actual
number of days elapsed. If any Event of Default occurs and is
continuing and the Majority Lenders in their discretion so elect, then,
while any Event of Default is outstanding, the Letter of Credit Fee
shall be increased to the Default Rate."
1.11 Amendment to Provision Regarding Appraisals. Section 6.5 of the
Loan Agreement is hereby amended by deleting such section in its entirety, and
inserting in its place the following:
"6.5 Appraisals. Whenever a Default or Event of Default exists, and at
such other times not more frequently than twice a year as the Agent
requests (and, upon the Agent's request, at any one time after the
Impaired Inventory Percentage exceeds (i) 25%; (ii) 35%; and (iii)
45%), the Borrower shall, at its expense and upon the Agent's request,
provide the Agent with appraisals or updates thereof of any or all of
the Collateral from an appraiser, and prepared on a basis, reasonably
satisfactory to the Agent."
1.12 Amendment to Collateral Reporting Requirements. Section 6.7 of the
Loan Agreement is hereby amended by deleting such section in its entirety, and
inserting in its place the following:
"6.7 Collateral Reporting. The Borrower shall provide the Agent with
the following documents at the following times in form reasonably
satisfactory to the Agent: (a) on a weekly basis no later than the
third Business Day of the following week, a Borrowing Base Certificate,
a summary report listing on hand Inventory balances by vendor and
accounts payable owing to any vendor or supplier who has a Lien on any
Inventory, a summary report with such information as is included in the
Borrower's currently produced report titled "Top Fifty Manufacturers
Summary of Accounts Payable Owed" (such summary report shall
specifically include all amounts owed and accounts payable to Compaq),
summary Inventory reports by category (and, if requested by the Agent,
additional detail thereof); (b) on a quarterly basis no later than the
45th day following the end of each fiscal quarter, a statement of the
balance of each of the Intercompany Accounts; (c) upon the occurrence
and during the continuance of an Event of Default, (i) as frequently as
requested by the Agent, Borrowing Base certificates, and (ii) on a
monthly basis (or more frequently if requested by the Agent), an aging
of accounts payable which is aged by due date, an aging of Accounts
reconciled against the previous month's aging and the Borrower's
general ledger and copies of invoices and purchase orders as requested
by the Agent; and (d) such other reports as to the Collateral of the
Borrower as the Agent shall reasonably request from time to time. If
any of the Borrower's records or reports of the Collateral are prepared
by an accounting service or other agent, the Borrower hereby authorizes
such service or agent to deliver such records, reports, and related
documents to the Agent, for distribution to the Lenders. For the
purposes of this Section 6.7, the word "month" shall mean "fiscal
month.""
1.13 Amendment to Financial Reporting Requirement. Section 7.2 of the
Loan Agreement is hereby amended by adding a new subparagraph (k) to read as
follows:
"(k) On a quarterly basis no later than the 45th day following the end
of each fiscal quarter, beginning with the fiscal quarter ended June
30, 2000, a quarterly consolidating financial report in a form
acceptable to the Agent, setting forth certain unaudited financial
information of the Parent and its Subsidiaries (with such changes to
such exhibit as the Parent may adopt from time to time)."
1.14 Amendment to Financial Reporting Requirement. Section 7.2 of the
Loan Agreement is hereby amended by deleting subparagraph (b) in its entirety,
and inserting in its place the following:
"(b) As soon as available after the end of each fiscal month, a monthly
financial report in substantially the form of Exhibit F (and, in any
case, including the "key monthly business driver data"), setting forth
certain unaudited financial information of the Parent and its
Subsidiaries (with such changes to such Exhibit F as Parent may adopt
from time to time)"
1.15 Subsidiaries and Affiliates. Section 8.5 of the Loan Agreement is
hereby amended by inserting the following at the end
of such section:
"The Borrower shall supplement Schedule 8.5 from time to time as new
Subsidiaries of the Parent are created so long as such new Subsidiaries
are otherwise permitted by the terms of this Agreement."
1.16 Transactions with Affiliates. Section 9.15 of the Loan Agreement
is hereby amended by (i) adding the following to clause (a) thereof: "and (vii)
Guarantees permitted under Section 9.13(g) and (h)" and (ii) inserting a new
clause (d) at the end of such section to read as follows:
"(d) so long as such transactions are related to the ongoing businesses
and activities of Merisel Open Computing Alliance, Inc. or the Borrower
and its Subsidiaries, the Borrower and its Subsidiaries may in the
ordinary course of business (i) sell Inventory and inventory to the
extent permitted under Section 1.23 of the Third Amendment to this
Agreement, (ii) make loans or advances to, or receive loans or advances
from, Merisel Open Computing Alliance, Inc. on a day to day basis so
long as such transactions are done solely to meet such entities'
short-term cash flow needs; and (iii) provide services, facilities or
equipment to, or receive services, facilities or equipment from,
Merisel Open Computing Alliance, Inc. (and may receive fees and pay
fees corresponding to such services, facilities or equipment), which
services may include, without limitation, provision of personnel."
1.17 Addition of Cash Flow Covenant. Section 9.20 of the Loan Agreement
(which was Intentionally Omitted) is hereby amended by deleting such section in
its entirety, and inserting in its place the following:
"9.20 Cash Flow. The Borrower will maintain Cash Flow, determined as of
the last day of the fiscal quarter, of not less than (i) ($15,000,000)
for the quarter ending March 31, 2000 and (ii) ($20,500,000) for the
period of two consecutive fiscal quarters ending June 30, 2000."
1.18 Amendment to Certain Financial Covenants. Sections 9.22 and 9.23
of the Loan Agreement are hereby amended, effective as of December 31, 1999, by
deleting such sections in their entirety, and inserting in their place the
following:
"9.22 Capital Expenditures. Neither the Parent nor the Borrower, nor
any of their Subsidiaries, shall, commencing with Fiscal Year 2000,
make or incur any Capital Expenditure if, after giving effect thereto,
the aggregate amount of all Capital Expenditures (net of proceeds from
sales of fixed assets) by such parties on a consolidated basis would
exceed (i) $25,000,000 for any Fiscal Year or (ii) $7,500,000 for any
fiscal quarter.
"9.23 Interest Coverage Ratio. For the fiscal periods set forth
below, the Borrower will maintain an Interest Coverage
Ratio in the amount set forth opposite such fiscal period:
Fiscal Period Ratio
Quarter ending September 30, 2000 1.00 to 1.00
Quarter ending December 31, 2000 1.10 to 1.00
Each quarter ending thereafter 1.10 to 1.00"
1.19 Amendment to Schedule 8.5. The Agent and the Borrower hereby
agree that Schedule 8.5 to the Loan Agreement is hereby
supplemented by adding the following:
"The Borrower owns all of the outstanding equity interests of Merisel
Open Computing Alliance, Inc.; provided that such equity interest may,
at the Borrower's discretion, be distributed to the Parent."
1.20 Waiver of Defaults. The Agent and the Lenders hereby waive,
effective as of the end of the Borrower's 1999 Fiscal Year and as of the end of
the Borrower's 1999 fiscal fourth quarter, the potential Defaults or Events of
Default existing under the Loan Agreement by reason of the failure of the
Borrower to be in compliance with the requirements of Sections 9.22 and 9.23 of
the Loan Agreement as of such dates (as such sections were in effect at the end
of the Borrower's 1999 Fiscal Year and without giving effect to the
modifications to such sections in this Amendment). Nothing contained herein
shall constitute a waiver of any other Event of Default, whether or not the same
are known to the Agent or any of the Lenders at the date hereof, or constitute
any agreement to waive the same or other Events of Default at any other time in
the future.
1.21 Waiver to Covenants and Representations. The Agent and the Lenders
hereby waive compliance with any representation, warranty, or covenant under
Articles 6, 7, 8 or 9 of the Loan Agreement and any Default or Event of Default
under Article 11 of the Loan Agreement, to the extent the Borrower would breach
such representation, warranty or covenant or create a Default or Event of
Default in consummating or effectuating the Borrower's proposal to split its
"Merisel Open Computing Alliance" division into a new wholly owned subsidiary,
as such transaction is described in the written summary attached hereto as
Exhibit A (the "MOCA Transaction").
1.22 Consent to MOCA Transaction. The Agent and the Lenders hereby
approve of and consent to the MOCA Transaction and the transfer by the Borrower
of that portion of its Inventory which relates solely to the products of Sun
Microsystems (the "Transferred Inventory") to Merisel Open Computing Alliance,
Inc. ("MOCA"). The Agent and the Lenders hereby agree to release, and to execute
and deliver such instruments or agreements as may be necessary to effect such
release, the Lenders' security interest in the Transferred Inventory, provided
that such release of the Transferred Inventory will not, under the Loan
Agreement, cause the Aggregate Revolver Outstanding to exceed the Availability
(with the Availability for purposes of this sentence calculated as if (i) the
Aggregate Revolver Outstanding were zero and (ii) the Transferred Inventory were
excluded from the Borrowing Base).
1.23 Consent to Periodic Transfer of Inventory to MOCA. The Agent and
the Lenders hereby approve of and consent to sales by the Borrower to MOCA, from
time to time, of Inventory and inventory which is to be sold by MOCA in its
ordinary course of business; provided that the terms of such sales provide for
amounts due to be paid within 30 days from the time such Inventory and inventory
is sold (unless: (i) MOCA is in default under any agreement with General
Electric Capital Corporation relating to the securitization of its assets or
(ii) such sale of any such Inventory or inventory will cause the Availability
(calculated without regard to the Maximum Revolver Amount) to be less than
$50,000,000.00, in which case such sales must be on a cash basis). Upon any such
sales, the Agent's and the Lenders' Liens on such sold Inventory shall be
released.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
The Borrower warrants and represents to the Agent and the Lenders that:
2.1 Representations and Warranties True and Correct. The
representations and warranties contained in the Loan Agreement and the other
Loan Documents are correct in all material respects on and as of the date hereof
after giving effect to this Amendment (except representations and warranties
which are made as of a specified date shall only be required to be true and
correct in all material respects as of such specified date).
2.2 No Default or Event of Default. No event has occurred and is
continuing which constitutes a Default or an Event of Default after giving
effect to this Amendment.
2.3 Corporate Authority; No Breach. The execution, delivery and
performance by the Borrower of this Amendment have been duly authorized by all
necessary corporate and other action and do not and will not (i) require any
registration with, consent or approval of, notice to or action by, any Person
(including any Governmental Authority) in order to be effective and enforceable,
(ii) contravene the terms of the Borrower's Certificate of Incorporation or
bylaws, or (iii) conflict with, or result in any breach or contravention of, any
other document to which the Borrower is a party or any order, injunction, writ
or decree of any Governmental Authority to which the Borrower or its property is
subject. The Loan Agreement as amended by this Amendment constitutes a legal,
valid and binding obligation of the Borrower, enforceable against the Borrower
in accordance with its respective terms, without defense, counterclaim or
offset, except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in equity or at law).
ARTICLE 3
MISCELLANEOUS
3.1 Effective Date. This Amendment shall be effective as of the date
when the Agent has received (i) a duly executed counterpart of this Amendment
from the Borrower, (ii) a duly executed guaranty by the Parent in a form
acceptable to the Agent in its sole discretion (the "Parent Guaranty"), (iii) a
duly executed guaranty by MOCA in a form acceptable to the Agent in its sole
discretion (the "MOCA Guaranty"), and (iv) a duly executed "Second Amendment to
Fee Letter" (in a form acceptable to the Agent in its sole discretion) from the
Borrower to the Agent dated as of the date hereof.
3.2 Covenant Regarding Landlord Waiver. The Borrower covenants and
agrees to use its reasonable best efforts to obtain and deliver to the Agent, no
later than the 30th day following the execution of this Amendment, a duly
executed landlord waiver in a form acceptable to the Agent in its sole
discretion covering the property that the Borrower leases in Richmond, Virginia.
The Borrower acknowledges and agrees that if such landlord waiver is not
delivered to the Agent before the end of such 30-day period, then the Agent may
at its discretion, pursuant to the provisions of the Loan Agreement, establish a
reserve from Availability.
3.3 No Other Waiver. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Agent or the Lenders under the Loan Documents,
nor constitute a waiver of any provisions of the Loan Documents.
3.4 Governing Law. This Amendment is to be construed in accordance with
and governed by the internal laws of the State of California (as permitted by
Section 1646.5 of the California Civil Code or any similar successor provision)
without giving effect to any choice of law rule that would cause the application
of the laws of any jurisdiction other than the internal laws of the State of
California to the rights and duties of the parties.
3.5 Binding Effect. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and each of their respective
successors and assigns.
3.6 Entire Agreement. This Amendment, together with the Loan Agreement
and the other Loan Documents, contains the entire and exclusive agreement of the
parties hereto with reference to the matters discussed herein and therein, and
cannot be amended, modified or supplemented except by an instrument in writing
executed by each party hereto. This Amendment supersedes all prior drafts and
communications between the parties with respect to the subject matter addressed
herein.
3.7 Severability. If any term or provision of this Amendment shall be
deemed prohibited by or invalid under any applicable law, such provision shall
be invalidated without affecting the remaining provisions of this Amendment or
the Loan Agreement, respectively.
3.8 Costs and Expenses; Further Assurances. Without limiting any
provisions of any of the Loan Documents: (i) the Borrower agrees to pay on
demand all costs and expenses of the Agent and the Lenders (including the
reasonable costs (estimated at approximately $38,900) of that certain Collateral
appraisal being conducted concurrently with the preparation of this Amendment)
in connection with the preparation, execution, delivery and enforcement of this
Amendment, including, without limitation, the reasonable fees and expenses of
counsel for the Agent with respect thereto and with respect to advising Agent as
to its rights and responsibilities hereunder; and (ii) the Borrower, the Agent
and the Lenders agree to execute and deliver such instruments and documents and
take such other action as shall be reasonably necessary or advisable in order to
carry out the intent of this Amendment.
3.9 References to Loan Agreement and Loan Documents. From and after the
effectiveness of this Amendment, all references in the Loan Agreement to "this
Agreement", "hereof", "herein", and similar terms shall mean and refer to the
Loan Agreement as certain provisions thereof are amended or supplemented by this
Amendment, and all references in other documents to the Loan Agreement shall
mean such agreement as certain provisions thereof are amended or supplemented by
this Amendment. From and after the effectiveness of this Amendment, the term
"Loan Documents" (as defined in the Loan Agreement) shall include the Parent
Guaranty and the MOCA Guaranty. The Loan Agreement and the other Loan Documents
are hereby ratified and confirmed and, except as herein otherwise agreed, remain
unmodified and in full force and effect.
3.10 Counterparts. This Amendment may be executed in any number of
counterparts, and by the Agent and the Borrower in separate counterparts, each
of which shall be an original, but all of which shall together constitute one
and the same agreement.
IN WITNESS WHEREOF, the parties have entered into this Amendment on the
date first above written.
"BORROWER"
Merisel Americas, Inc., a Delaware corporation
By:_______________________________________________________
Name:_____________________________________________________
Title:____________________________________________________
Address: 000 Xxxxxxxxxxx Xxxxxxxxx
Xx Xxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
"AGENT"
Bank of America, National Association, as the Agent
By:_______________________________________________________
Name:_____________________________________________________
Title:____________________________________________________
Address: 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
"LENDERS"
Bank of America, National Association, as a Lender
By:_______________________________________________________
Name:_____________________________________________________
Title:____________________________________________________
Address: 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Congress Financial Corporation, as a Lender
By:_______________________________________________________
Name:_____________________________________________________
Title:____________________________________________________
Address: ________________
Telecopy No.: (___) ___________
