Exhibit 10.1
FIFTH AMENDMENT
TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this“Amendment”) dated as of February 27, 2009, is entered into among MODUSLINK CORPORATION, a Delaware corporation (“ModusLink”), SALESLINK LLC, a Delaware limited liability company (“SalesLink”), SALESLINK MEXICO HOLDING CORP., a Delaware corporation (“SalesLink Mexico”) (each herein called a“Borrower”and collectively, the“Borrowers”), the lenders party hereto (herein collectively called the “Lenders” and each individually called a“Lender”) and BANK OF AMERICA, N.A., as a Lender and as Agent for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrowers and the Lenders are parties to that certain Second Amended and Restated Loan and Security Agreement dated as of October 31, 2005 as amended by as amended by (i) that certain First Amendment to Second Amended and Restated Loan and Security Agreement dated as of October 29,2006, (ii) that certain Second Amendment to Second Amended and Restated Loan and Security Agreement dated as of January 9, 2007, (iii) that certain Third Amendment to Second Amended and Restated Loan and Security Agreement dated as of October 31, 2007 and (iv) that certain Fourth Amendment to Second Amended and Restated Loan and Security Agreement dated as of October 31, 2008 (the“Existing Loan Agreement” and as the Existing Loan Agreement is amended and modified by this Amendment, the“Amended Loan Agreement”); and
WHEREAS, Borrowers have requested that the Lenders amend the Existing Loan Agreement to evidence the Assignment and in other certain respects and the Lenders are willing to amend the Existing Loan Agreement to evidence the Assignment and in other certain respects as provided herein.
NOW, THEREFORE, in consideration of the premises contained herein and other good and valuable consideration, it is agreed that:
SECTION 1
DEFINED TERMS
Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Existing Loan Agreement.
SECTION 2
AMENDMENTS TO EXISTING LOAN AGREEMENT
2.1Amendments to Definitions. The definition of Aggregate Revolving Credit Commitment contained in Section 1.1 of the Existing Loan Agreement is hereby amended by deleting the reference to the amount $45,000,000 contained therein and substituting the amount $35,000,000 therefor.
2.2Replacement of Schedule 2.1.Schedule 2.1 to the Existing Loan Agreement is hereby amended by replacing Schedule 2.1 to the Existing Loan Agreement with the replacement Schedule 2.1 attached to this Amendment as Attachment I.
SECTION 3
REPRESENTATIONS AND WARRANTIES
Each Borrower hereby jointly and severally represents and warrants to Lenders that:
3.1Due Authorization, etc.The execution and delivery of this Amendment and the performance of such Borrower’s obligations under the Amended Loan Agreement are duly authorized by all necessary corporate or company action, do not require any filing or registration with or approval or consent of any governmental agency or authority, do not and will not conflict with, result in any violation of or constitute any default under any provision of its certificate of incorporation or organization, as applicable, or by-laws or limited liability company agreement, as applicable, or that of any of its Subsidiaries or any material agreement or other document binding upon or applicable to it or any of its Subsidiaries (or any of their respective properties) or any material law or governmental regulation or court decree or order applicable to it or any of its Subsidiaries, and will not result in or require the creation or imposition of any Lien in any of its properties or the properties of any of its Subsidiaries pursuant to the provisions of any agreement binding upon or applicable to it or any of its Subsidiaries.
3.2Validity.This Amendment has been duly executed and delivered by such Borrower and, together with the Amended Loan Agreement, are the legal, valid and binding obligations of such Borrower to the extent such Borrower is a party thereto, enforceable against such Borrower in accordance with their respective terms subject, as to enforcement only, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of the rights of creditors generally.
3.3Representations and Warranties.The representations and warranties contained in Section 6 of the Existing Loan Agreement are true and correct on the date of this Amendment, except to the extent that such representations and warranties (a) solely relate to an earlier date or (b) have been changed by circumstances permitted by the Amended Loan Agreement.
SECTION 4
CONDITIONS PRECEDENT
The amendments set forth in Section 2 of this Amendment shall become effective upon satisfaction of all of the following conditions precedent:
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4.1Receipt of Documents.Agent shall have received all of the following, each in form and substance satisfactory to Agent:
(a)Amendment. A counterpart original of this Amendment duly executed by Borrowers and Lenders.
(b)Other. Such other documents as Agent may reasonably request.
4.2Other Conditions.No Event of Default or Default shall have occurred and be continuing.
SECTION 5
MISCELLANEOUS
5.1Warranties and Absence of Defaults.In order to induce Lenders to enter into this Amendment, each Borrower jointly and severally hereby warrants to Lenders, as of the date of the actual execution of this Amendment, that (a) no Event of Default or Default has occurred which is continuing as of such date and (b) the representations and warranties in Section 3 of this Amendment are true and correct.
5.2Documents Remain in Effect.Except as amended and modified by this Amendment, the Existing Loan Agreement and the other documents executed pursuant to the Existing Loan Agreement remain in full force and effect and each Borrower hereby ratifies, adopts and confirms its representations, warranties, agreements and covenants contained in, and obligations and liabilities under, the Existing Loan Agreement and the other documents executed pursuant to the Existing Loan Agreement.
5.3Reference to Loan Agreement.On and after the effective date of this Amendment, each reference in the Amended Loan Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import, and each reference to the “Loan Agreement” in any Note and in any Ancillary Agreement, or other agreements, documents or other instruments executed and delivered pursuant to the Amended Loan Agreement, shall mean and be a reference to the Amended Loan Agreement.
5.4Headings.Headings used in this Amendment are for convenience of reference only, and shall not affect the construction of this Amendment.
5.5Counterparts.This Amendment may be executed in any number of counterparts, and by the parties hereto on the same or separate counterparts, and each such counterpart, when executed and delivered, shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Amendment.
5.6Expenses.Borrowers agree to pay on demand all costs and expenses of Lenders (including reasonable fees, charges and disbursements of Lenders’ attorneys) in connection with the preparation, negotiation, execution, delivery and administration of this Amendment and all
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other instruments or documents provided for herein or delivered or to be delivered hereunder or in connection herewith. In addition, Borrowers agree to pay, and save Lenders harmless from all liability for, any stamp or other taxes which may be payable in connection with the execution or delivery of this Amendment, the borrowings under the Amended Loan Agreement, and the execution and delivery of any instruments or documents provided for herein or delivered or to be delivered hereunder or in connection herewith. All obligations provided in this Section 5.6 shall survive any termination of this Amendment or the Amended Loan Agreement.
5.7Governing Law.This Amendment shall be a contract made under and governed by the internal laws of the State of Illinois. Wherever possible, each provision of this Amendment shall be interpreted in such a manner as to be effective and valid under applicable laws, but if any provision of this Amendment shall be prohibited by or invalid under such laws, such provisions shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Amendment.
5.8Successors.This Amendment shall be binding upon Borrowers, Lenders and their respective successors and assigns, and shall inure to the benefit of Borrowers, Lenders and the successors and assigns of Lenders.
5.9Amended and Restated Waiver Agreement. Each of the Borrowers, Agent and the Lenders agree and acknowledge that the terms and conditions of that certain Amended and Restated Waiver Agreement dated as of January 30, 2009 by and among the Borrowers, the Agent and the Lenders party thereto remain in full force and effect notwithstanding the execution and delivery of this Amendment.
[signature page attached]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first written above.
| BORROWERS: | ||||||
MODUSLINK CORPORATION a Delaware corporation | SALESLINK LLC a Delaware limited liability company | |||||
| By: | /s/ Steven G. Crane | By: | /s/ Steven G. Crane | |||
| Name: | Steven G. Crane | Name: | Steven G. Crane | |||
| Title: | Chief Financial Officer | Title: | Chief Financial Officer | |||
SALESLINK MEXICO HOLDING CORP. a Delaware corporation | ||||||
| By: | /s/ Steven G. Crane | |||||
| Name: | Steven G. Crane | |||||
| Title: | Chief Financial Officer | |||||
Fifth Amendment to Second Amended and Restated Loan and Security Agreement
| AGENT: | ||
| BANK OF AMERICA, as Agent | ||
| By: | /s/ Michael Brashler | |
| Name: | Michael Brashler | |
| Title: | Vice President | |
| Address | ||
| Bank of America, N.A. | ||
| 231 South LaSalle | ||
| Chicago, Illinois 60603 | ||
| Attn: Michael Brashler | ||
| Fax: 877-207-0732 | ||
| LENDERS: | ||
| BANK OF AMERICA, as a Lender | ||
| By: | /s/ David Bacon | |
| Name: | David Bacon | |
| Title: | First Vice President | |
| Address | ||
| Bank of America, N.A. | ||
| 135 South LaSalle | ||
| Chicago, lllinois 60603 | ||
| Attn: David Bacon | ||
| Fax: (312) 904-0409 | ||
RBS CITIZENS, NATIONAL ASSOCIATION f/k/a CITIZENS BANK OF MASSACHUSETTS, as a Lender | ||
| By: | /s/ Victoria P. Lazzell | |
| Name: | Victoria P. Lazzell | |
| Title: | Senior Vice President | |
| Address | ||
| RBS Citizens, National Association | ||
| 53 State Street, 8th Floor | ||
| Boston, Massachusetts 02109 | ||
| Attn: Victoria P. Lazzell, Senior Vice President | ||
| Fax: (617) 742-9548 | ||
Fifth Amendment to Second Amended and Restated Loan and Security Agreement