Fifth Amendment to Second Amended and Restated Loan and Security Agreement



 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: 
  

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 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 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. 
 5.2 Documents 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. 
 5.3 Reference 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. 
 5.4 Headings. Headings used in this Amendment are
for convenience of reference only, and shall not affect the construction of this Amendment. 
 5.5 Counterparts. 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. 
 5.6 Expenses. 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.

 5.7 Governing 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. 
 5.8 Successors. 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. 
 5.9 Amended 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