Exhibit 10.17
AMENDMENT NO. 3
TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 3 ("Amendment") is entered into as of December
20, 2001 by and between SYSTEMAX INC., a corporation organized under the laws of
the State of Delaware ("SYX"), SYSTEMAX MANUFACTURING INC. (formerly known as
Midwest Micro Corp.), a corporation organized under the laws of the State of
Delaware ("SMI"), GLOBAL COMPUTER SUPPLIES INC. (successor by merger to
Continental Dynamics Corp.), a corporation organized under the laws of the State
of New York ("GCS"), GLOBAL EQUIPMENT COMPANY, INC., a corporation organized
under the laws of the State of New York ("GEC"), TIGER DIRECT, INC., a
corporation organized under the laws of the State of Florida ("Tiger"), DARTEK
CORPORATION, a corporation organized under the laws of the State of Delaware
("Dartek"), NEXEL INDUSTRIES, INC., a corporation organized under the laws of
the State of New York ("NII"), MISCO AMERICA INC., a corporation organized under
the laws of the State of Delaware ("Misco"), SYSTEMAX RETAIL SALES INC., a
corporation organized under the laws of the State of Delaware ("SRS"), PAPIER
CATALOGUES, INC., a corporation organized under the laws of the State of New
York ("PCI"), CATALOG DATA SYSTEMS, INC., a corporation organized under the laws
of the State of New York ("CDS"), MILLENNIUM FALCON CORP., a corporation
organized under the laws of the State of Delaware ("MFC"), TEK SERV INC., a
corporation organized under the laws of the State of Delaware ("TSI"), B.T.S.A.,
Inc., a corporation organized under the laws of the State of New York ("BTSA")
and XXXXXXXXXXXX.XXX INC., a corporation organized under the laws of the State
of Delaware ("KMC") (SYX, SMI, GCS, GEC, Tiger, Dartek, NII, Misco, SRS, PCI,
CDS, MFC, TSI, BTSA and KMC, each a "Borrower" and jointly and severally the
"Borrowers"), the lenders who are parties to the Loan Agreement, as defined
herein ("Lenders") and JPMorgan Chase Bank, formerly known as The Chase
Manhattan Bank, as agent for the Lenders ("Agent").
BACKGROUND
Borrowers, Lenders and Agent are parties to a Loan and Security
Agreement dated as of June 13, 2001 (as amended by Amendment No. 1 to Loan and
Security Agreement dated as of September 1, 2001, by Amendment No. 2 to Loan and
Security Agreement and Consent dated as of December 13, 2001 and as the same may
be amended, supplemented or otherwise modified from time to time, the "Loan
Agreement") pursuant to which Lenders provide Borrowers with certain financial
accommodations.
Borrowers have requested Agent and the Lenders to amend certain
provisions of the Loan Agreement to permit additional Capital Expenditures to be
made during the current fiscal year and Agent and Lenders are willing to do so
on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant
of credit heretofore or hereafter made to or for the account of Borrowers by
Lenders, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITIONS. All capitalized terms not otherwise defined
herein shall have the meanings given to them in the Loan Agreement.
2. AMENDMENT TO LOAN AGREEMENT. Subject to satisfaction of the
conditions precedent set forth in Section 3 below, clause (i) of Section 7.6 to
the Loan Agreement is hereby amended by deleting the sum "$17,500,000" appearing
therein and inserting the sum $19,500,000" in lieu thereof.
3. CONDITION OF EFFECTIVENESS. This Amendment shall become
effective as of December 20, 2001, when and only when Agent shall have received
six (6) copies of this Amendment in form and substance satisfactory to Agent
executed by Borrowers and each of the Lenders.
4. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants as follows:
(a) This Amendment and the Loan Agreement, as amended
hereby, constitute legal, valid and binding obligations of Borrower
and are enforceable against Borrowers in accordance with their
respective terms.
(b) Upon the effectiveness of this Amendment, each Borrower
hereby reaffirms all covenants, representations and warranties made in
the Loan Agreement to the extent the same are not amended hereby and
agree that all such covenants, representations and warranties shall be
deemed to have been remade as of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Amendment.
(d) Borrowers have no defense, counterclaim or offset with
respect to the Loan Agreement.
5. EFFECT ON THE LOAN AGREEMENT.
(a) Upon the effectiveness of this Amendment, each reference
in the Loan Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import shall mean and be a reference to the
Loan Agreement as amended hereby.
(b) Except as specifically amended herein, the Loan
Agreement, and all other documents, instruments and agreements
executed and/or delivered in connection therewith, shall remain in
full force and effect, and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy
of Agent or any Lender, nor constitute a waiver of any provision of
the Loan Agreement, or any other documents, instruments or agreements
executed and/or delivered under or in connection therewith.
6. GOVERNING LAW. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
and shall be governed by and construed in accordance with the laws of the State
of New York.
7. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be
executed by the parties hereto in one or more counterparts, each of which shall
be deemed an original and all of which taken together shall be deemed to
constitute one and the same agreement. Any signature delivered by a party via
telecopier shall be deemed to be an original signature hereto.
IN WITNESS WHEREOF, this Amendment No. 3 has been duly executed as of
the day and year first written above.
SYSTEMAX INC.
By: /S/ XXXXXX X. XXXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
SYSTEMAX MANUFACTURING INC.
GLOBAL COMPUTER SUPPLIES INC.
GLOBAL EQUIPMENT COMPANY, INC.
TIGER DIRECT, INC.
DARTEK CORPORATION
NEXEL INDUSTRIES, INC.
MISCO AMERICA INC.
SYSTEMAX RETAIL SALES INC.
PAPIER CATALOGUES, INC.
CATALOG DATA SYSTEMS, INC.
MILLENNIUM FALCON CORP.
TEK SERV INC.
B.T.S.A., INC.
XXXXXXXXXXXX.XXX INC.
By: /S/ XXXXXX X. XXXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
JPMORGAN CHASE BANK, formerly known
as THE CHASE MANHATTAN BANK,
as Lender and as Agent
By: /S/ XXXXX X. XXXXXXX
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Name: Xxxxx X. XxXxxxx
Title: Vice President
TRANSAMERICA BUSINESS CAPITAL
CORPORATION, as Lender and as
Co-Agent
By: /S/ XXXXXXX X. XXXXX
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Its: SENIOR VICE PRESIDENT
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GMAC COMMERCIAL CREDIT LLC,
as Lender
By: /S/ XXXX Xxxxxxxxxx
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Its: SR. VICE PRESIDENT
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