AMENDMENT No. 8 TO PURCHASE AGREEMENT
AMENDMENT No. 8 TO PURCHASE AGREEMENT, dated as of May 19,
2000 (this "Amendment") 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 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, Amendment No. 4, dated as of February 22, 1999, Amendment No. 5,
dated as of May 12, 1999, Amendment No. 6, dated as of August 13, 1999 and
Amendment No. 7, dated as of March 10, 2000 (the "Purchase Agreement"); and
WHEREAS, the parties hereto desire to amend the Purchase
Agreement (such amendment is referred to herein as this "Amendment").
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
SECTION 1.1 All capitalized terms used herein, unless otherwise defined,
are used as defined in the Purchase Agreement.
ARTICLE II : AMENDMENT NO. 8 TO PURCHASE AGREEMENT
SECTION 2.1 Subparagraph (a) of Exhibit H of the Purchase Agreement is hereby
amended by (i) changing the references therein to "Second Quarter of 2000" to
"First Quarter of 2000" the first time such reference appears and the reference
to "$10 million" to "$7 million" and (ii) amending the definition of "EBITDA" by
adding the following to the end thereof "prior to and including the First
Quarter 2000. Any non-cash charges after the First Quarter of 2000 must be
approved in writing by the Operating Agent."
ARTICLE III : CONDITIONS PRECEDENT
SECTION 3.1 The effectiveness of this Amendment 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 this Amendment 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 this 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 and (ii) as to the incumbency and
specimen signature of each Person's officers executing this Amendment,
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 this amendment, 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) An Officer's Certificate in form and substance satisfactory to the
Operating Agent to the effect that all of the representations and
warranties in the Transfer Agreement and Purchase Agreement are true
and correct in all material respects as of the date hereof after giving
effect to this Amendment.
(d) The Seller shall pay the fees and expenses of the Purchaser incurred in
connection with preparing this Amendment. (e) The Operating Agent shall have
received written confirmation from the Rating Agencies that this Amendment will
not result in
a withdrawal, downgrade or qualification of the ratings assigned to the
Commercial Paper.
ARTICLE IV : SELLER'S AND SERVICER'S REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Each of the Seller and the Servicer represents and warrants that:
(a) this Amendment have been duly authorized, executed and
delivered pursuant to its corporation power;
(b) this Amendment 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 V : MISCELLANEOUS
SECTION 5.1 Confirmation of Purchase Agreement. Each of the Seller and the
Servicer agree that, except for the specific amendments 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 this Amendment 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 5.2 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 5.3 Counterparts. Delivery of an executed counterpart of a signature
page to this Amendment by facsimile shall be effective as delivery of a manually
executed counterpart of this Amendment. This Amendment 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 5.4 Governing Law. These Amendments shall be governed by, and construed
in accordance with, California law.
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SECTION 5.5 Effective Date of Amendment. Upon the execution and delivery of this
Amendment by the parties hereto and the satisfaction of the conditions precedent
set forth herein, the Purchase Agreement shall be amended by this Amendment,
effective as of the date of hereof.
* * *
IN WITNESS WHEREOF, the Seller, the Servicer, the Collateral
Agent, the Operating Agent and the Purchaser have caused this Amendment 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:___________________________
Title:
Name:
MERISEL AMERICAS, INC.,
as Servicer
By:___________________________
Title:
Name:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Operating Agent and Collateral Agent
By:___________________________
Title:
Name:
REDWOOD RECEIVABLES CORPORATION,
as Purchaser
By:___________________________
Title:
Name:
