Exhibit 10.16
AMENDMENT NO. 2
TO
LOAN AND SECURITY AGREEMENT
AND CONSENT
THIS AMENDMENT NO. 2 AND CONSENT ("Amendment No. 2 and Consent")
is entered into as of December 13, 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, Agent and Lenders 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 and as the same may be amended,
supplemented or otherwise modified from time to time, the "Loan Agreement")
pursuant to which the Lenders provide Borrowers with certain financial
accommodations.
Borrowers have requested Agent and Lenders to amend certain
provisions of the Loan Agreement to permit (a) a capital contribution in the sum
of $2,400,000 to be made by SYX to a Spanish subsidiary of Misco, the proceeds
of which would be repaid to SYX, directly or indirectly, no later than five (5)
Business Days from the date on which it would be contributed, (b) the formation
of a new joint venture in which MFC would initially have a 50% ownership
interest and (c) the capitalization of such new entity, all in accordance with
the provisions hereof. 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. AMENDMENTS TO LOAN AGREEMENT. Subject to satisfaction of the
conditions precedent set forth in Section 4 below, the Loan Agreement is hereby
amended as follows:
(a) The definition of "Stock Pledge Agreement" appearing in
the Loan Agreement is hereby modified by (i) changing the word "and"
appearing therein immediately prior to clause (c) to a comma and (ii)
adding the clause "and (d) any other Stock Pledge Agreement, Pledge
Agreement or similar agreement which from time to time may be entered
into in favor of Agent for the benefit of Lenders in accordance with
Section 7.12 hereof" immediately prior to the period appearing at the
end of such definition.
(b) In Section 7.3 of the Loan Agreement, the phrase "and/or
Worldwide Papers LLC" is hereby added immediately following the words
"Millennium Group LLC" appearing therein.
(c) In Section 7.4 of the Loan Agreement, (i) the phrase ",
or capital contributions or other investments in," is hereby added on
the first line thereof immediately after the words "extensions of
credit to", (ii) the phrase "and/or Worldwide Papers Company LLC" is
hereby added immediately following the words "Millennium Group LLC"
appearing in clause (g) thereof, (iii) the word "and" prior to clause
(g) is changed to a comma and (iv) a new clause "and (h) during the
month of November 2001, capital contributions in the aggregate sum of
$2,400,000 to Misco Iberia Computer Supplies, S.A. (a Spanish
subsidiary of Misco; hereafter "Misco Iberia") provided that a
substantially equivalent sum is received by SYX, directly or
indirectly from Misco Iberia, whether in the form of repayment of
inter-company loans or trade debt or otherwise, proof of which (in
form and substance satisfactory to Agent) shall be provided to Agent
within five (5) Business Days of any such capital contributions" is
hereby added immediately prior to the period appearing at the end of
such Section 7.4.
(d) In Section 7.12(b) of the Loan Agreement, the phrase
"except with the prior written consent of Agent and then only if (i)
such partnership, joint venture or similar arrangement becomes a
Guarantor and executes a Guaranty of the Obligations in form and
substance satisfactory to Agent and (ii) each of the relevant
Borrowers participating in such partnership, joint venture or similar
arrangement, together with, in the sole discretion of Agent, the
interests of other Persons (if any) therein, are pledged to Agent for
the benefit of Lenders as additional Collateral pursuant to a Stock
Pledge Agreement" is added immediately porior to the period appearing
at the end thereof.
3. CONSENT. Subject to satisfaction of the conditions precedent
set forth in Section 4 below, Agent hereby consents to the formation by
Borrowers of the entity "Worldwide Papers LLC", a Delaware limited liability
company.
4. CONDITIONS OF EFFECTIVENESS. This Amendment No. 2 and Consent
shall become effective as of the date upon which Agent shall have received (a)
four (4) copies of this Amendment No. 2 and Consent in form and substance
satisfactory to Agent executed by Borrowers and Required Lenders, (b) four (4)
copies of a Guaranty executed by Worldwide Papers LLC in the form annexed hereto
as EXHIBIT A, (c) four (4) copies of a Pledge Agreement relating Worldwide
Papers LLC in the form annexed hereto as EXHIBIT B executed by each of the
owners thereof, along with membership certificates and membership powers, and
(d) an amendment and consent fee in the sum of $10,000.
5. REPRESENTATIONS AND WARRANTIES. Borrowers hereby represent and
warrant as follows:
(a) This Amendment No. 2 and Consent and the Loan Agreement,
as amended hereby, constitute legal, valid and binding obligations of
Borrowers and are enforceable against Borrowers in accordance with
their respective terms.
(b) Upon the effectiveness of this Amendment No. 2 and
Consent, each Borrower hereby reaffirms all covenants, representations
and warranties made in the Loan Agreement as 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
No. 2 and Consent.
(c) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Amendment No. 2
and Consent.
(d) Borrowers have no defense, counterclaim or offset with
respect to the Loan Agreement.
6. EFFECT ON THE LOAN AGREEMENT.
(a) Upon the effectiveness of this Amendment No. 2 and
Consent, 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.
(a) The execution, delivery and effectiveness of this
Amendment No. 2 and Consent 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.
7. GOVERNING LAW. This Amendment No. 2 and Consent 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.
8. HEADINGS. Section headings in this Amendment No. 2 and Consent
are included herein for convenience of reference only and shall not constitute a
part of this Amendment No. 2 and Consent for any other purpose.
9. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment No. 2 and
Consent 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. 2 and Consent has been
duly executed as of the day and year first written above.
SYSTEMAX INC.
By: /S/ XXXXXX X. GOLDSCHEIM
------------------------------
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. GOLDSCHEIM
----------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
JPMORGAN CHASE BANK, formerly known
as THE CHASE MANHATTAN BANK,
as Lender and as Agent
By: /S/ XXXXX X. XXXXXXX
----------------------------
Name: Xxxxx X. XxXxxxx
Title: Vice President
TRANSAMERICA BUSINESS CAPITAL
CORPORATION,
as Lender and as Co-Agent
By: /S/ XXXXX X. XXXXXXX
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
GMAC COMMERCIAL CREDIT LLC,
as Lender
By: /S/ XXXXX XXXXXXXX
----------------------------
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President
