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
2.1 Amendments 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.
2.2 Replacement 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:
3.1 Due 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.
3.2 Validity .
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.
3.3 Representations 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:
2
4.1 Receipt 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.
4.2 Other Conditions
. No Event of Default or
Default shall have occurred and be continuing.
SECTION 5
MISCELLANEOUS
5.1 Warranties and Absence of
Defaults . In order
to induce Lenders to enter into this Amendment, each Borrower
jointly and severally hereby warrants to Lenders, as
