Exhibit 10.1
AMENDED AND RESTATED WAIVER
AGREEMENT
THIS AMENDED AND RESTATED WAIVER
AGREEMENT (this
“Agreement ”) dated as of January 30, 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 successor by merger to LaSalle Bank National
Association), as a Lender and as Agent for the Lenders.
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
(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 “Loan Agreement”
);
WHEREAS , Borrowers failed to comply with the Fixed
Charge Coverage Ratio covenant set forth in Section 7.l(iii)
of the Loan Agreement as of October 31, 2008, which
constituted an Event of Default under the Loan Agreement (the
“ Designated Default ”);
WHEREAS , the Lenders and the Borrowers entered into
that certain Waiver Agreement dated as of December 9, 2008
(the “ Existing Waiver Agreement ”)
pursuant to which the Lenders waived the Designated Default subject
to the terms and conditions set forth in the Existing Waiver
Agreement;
WHEREAS , the Borrowers have requested that the Lenders
amend and restate the Existing Waiver Agreement to in order to
amend certain of the terms and conditions set forth in the Existing
Waiver Agreement;
WHEREAS , the Lenders have agreed to amend and restate
the Existing Waiver Agreement subject to, and on the terms and
conditions set forth herein.
NOW , THEREFORE, in consideration of the
premises contained herein and other good and valuable
consideration, it is agreed that:
1. Defined
Terms . Capitalized
terms used but not defined herein shall have the meanings ascribed
to such terms in the Loan Agreement.
2. Waiver
. From and after the date of the
Existing Waiver Agreement, and subject to the other terms and
conditions set forth in this Agreement, the Lenders hereby waive
the Designated Default and all of their respective rights and
remedies with respect to such Designated Default. The foregoing
shall not be deemed a waiver of any Event of Default or
Default which may have occurred after the date
of the Existing Waiver Agreement, or may occur after the date of
this Agreement, or establish a custom or course of dealing between
the Lenders and Borrowers, nor shall such waiver modify
Borrowers’ obligations to comply with Sections
7.1(iii) of the Loan Agreement.
3. Agreements in Respect of
Waiver . In
consideration for the agreement of the Lenders to waive the
Designated Default, each Borrower hereby acknowledges and agrees to
the following terms, conditions and agreements:
3.1 Financial Covenant
Restructuring . In
the event that the financial covenants contained in the Loan
Agreement are not amended by February 28, 2009 in a manner
acceptable to Lenders in their sole discretion (the
“Covenant Restructuring Amendment”), such
failure to amend the financial covenants shall constitute an Event
of Default under the Loan Agreement and the Agent and Lenders shall
have all rights and remedies available to them as a result of the
occurrence of an Event of Default under the Loan Agreement and the
other Ancillary Agreements. The Borrowers hereby acknowledge that
the following items shall be conditions precedent to the
effectiveness and consummation of the Covenant Restructuring
Amendment:
(i) The Agent and Lenders shall have
received the audited financial statements of Borrowers required to
be delivered pursuant to Section 7.2(C)(i) of the Loan
Agreement and such audited financial statements shall have no
material deviations from the internally prepared annual financial
statements for fiscal year 2008 previously delivered to the Agent
and Lenders; and
(ii) The Agent and Lenders shall
have received the results of the field exam that is being commenced
on or around the date of this Agreement and such results shall be
acceptable to Agent and Lenders in their sole
discretion.
3.2 Approval of Advances under
Revolving Credit Facility . Notwithstanding any other provision contained
in the Loan Agreement to the contrary, until such time that the
Covenant Restructuring Amendment is consummated and in effect, each
request for an advance under the Revolving Credit Facility by
Borrowers, and all advances made in connection therewith, shall be
conditioned upon and subject to the receipt by Agent of approval of
such advance from each Lender (including delivery of to Agent via
electronic email). Each Lender may grant or withhold its approval
in connection with any request for an advance under the Revolving
Credit Facility in such Lender’s sole discretion for any
reason (or for no reason). No Lender shall be obligated to advance
any amounts in connection with a request for a Revolving Loan by
the Borrowers unless each Lender has approved such request and has
agreed to make an advance pursuant thereto. For the avoidance of
doubt, at such time that the Covenant Restructuring Amendment is
consummated and effective, this Section 3.2 shall be of no
further force and effect.
3.3 Cash Collateralization of
Letters of Credit .
Notwithstanding any other provision contained in the Loan Agreement
to the contrary, until such time that the Covenant Restructuring
Amendment is consummated and in effect, the Issuing Lender shall be
under no
2
obligation to issue Letters of Credit for the
account of a Borrower unless (i) the Borrowers shall have
deposited in a cash collateral account opened by the Issuing Lender
available funds free and clear of all Liens in an amount equal to
the face amount of such Letter of Credit prior to such the issuance
of such Letter of Credit by the Issuing Lender and (ii) all
other conditions to the issuance of such Letter of Credit which are
contained in the Loan Agreement have been satisfied. For the
avoidance of doubt, at such time that the Covenant Restructuring
Amendment is consummated and effective, this
Section 3.3 shall be of no further force and
effect.
4. Representations and
Warranties . Each
Borrower hereby jointly and severally represents and warrants to
Lenders that:
4.1 Due Authorization,
etc . The execution
and delivery of this Agreement and the performance of such
Borrower’s obligations under the 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
