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Exhibit 10.8
CONSENT AND AMENDMENT
TO THE
LOAN AND SECURITY AGREEMENT
This AMENDMENT, dated as of June 25, 1999 (the "Amendment"),
to the Loan and Security Agreement, dated April 30, 1998 (the "Agreement"), by
and among The Cerplex Group, Inc., Aurora Electronics Group, Inc., Cerplex, Inc.
and Cerplex Mass, Inc. (jointly and severally, the "Borrower") and Welsh,
Carson, Xxxxxxxx & Xxxxx VII, L.P. ("WCAS VII") as successor in interest to the
predecessor lender party, Greyrock Business Credit, a division of NationsCredit
Commercial Corporation. The terms used herein, including in the preamble and
recitals hereto, not otherwise defined herein or otherwise amended hereby shall
have the meanings ascribed thereto in the Agreement.
RECITALS:
WHEREAS, the Borrower hereby requests the consent of WCAS VII to the
amendment set forth herein; and
WHEREAS, WCAS VII has agreed, subject to the terms and conditions of
this Agreement, to such amendment.
NOW, THEREFORE, in consideration of the premises and agreements,
provisions and covenants herein contained, the Borrower and WCAS VII agree as
follows:
1. The introduction paragraph of the Agreement shall be amended
to add the following after the last sentence:
"In the event that GBC sells and assigns its rights under this
Agreement, the party succeeding to GBC's rights and powers
hereunder shall be referred to as "GBC" or the "Lender"; it
being understood and agreed that the use of the term "Lender"
in lieu of the term "GBC" to refer to any successor party
shall in no manner be construed to divest such party of any
rights or powers of GBC hereunder."
2. Section 1.1 of the Agreement shall be amended to add the
following phrase to the end of the section:
"As of the Amendment Effective Date, and notwithstanding
anything to the contrary expressed or implied herein, in the
Schedule hereto or in any other
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document executed at any time and from time to time and
delivered in connection herewith, Lender shall have no
further commitment to extend sums under the Revolving Loans
and the Revolving Loans will be terminated on the Amendment
Effective Date; PROVIDED; HOWEVER, that any amounts
outstanding under the Revolving Loans shall, as of the
Amendment Effective Date, be converted into a term loan (the
"Additional Term Loan"), subject to those terms and
conditions set forth in Section 1.1 of the Schedule. It is
the intention of the Borrower and the Lender that any and
all advances heretofore made as Revolving Loans shall,
notwithstanding the conversion of the Revolving Loans into
the Additional Term Loan, once so converted, be, and for all
purposes be deemed to be, one and the same loan extended to
the Borrower."
3. Section 1.2 of the Agreement shall be amended such that the
last two sentences of Section 1.2 are deleted and replaced by
the following:
"Commencing on May 31, 1998, and continuing on the
last day of each succeeding month, accrued interest
on all Loans and other monetary Obligations shall be
payable monthly; PROVIDED, HOWEVER, that, commencing
with accrued interest payable on July 31, 1999, and
in the case of all accrued interest payable with
respect to periods occurring thereafter, accrued
interest on all Loans and other monetary Obligations
shall be payable "in kind"; that is to say, interest
shall be paid by the addition to the principal amount
of all Loans and other monetary Obligations of an
amount equal to the amount of such accrued interest.
Any accrued interest so added to principal shall bear
interest at the same rate as the principal under any
Loan or other monetary Obligation."
4. Section 8 of the Agreement shall be amended to include the
following definitions:
(a) "Amendment" shall refer to the Amendment, dated as of
June 25, 1999, to this Agreement, by and among the
Borrower and the Lender.
(b) "Amendment Effective Date" shall mean the date on
which the Amendment shall be executed by all parties
thereto.
5. The Schedule to the Agreement shall be amended as follows:
(a) section 1.1 shall be amended such that:
(1) the phrase "to GBC concurrently herewith" on the
fourth and fifth lines is deleted and replaced by the
phrase: "to the Lender on the Amendment Effective
Date" and;
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(2) the first full paragraph on the second page
(beginning with "Borrower may borrow") is amended and
restated in its entirety as follows:
"ADDITIONAL TERM LOAN. As a result of the Revolving
Loans having been converted into the Additional Term
Loan as of the Amendment Effective Date and Lender no
longer being required to extend loans pursuant to the
terms and conditions of the Revolving Loans, an
additional term loan (the "Additional Term Loan"),
consisting of $9,024,896.72, being the entire amount
outstanding under the Revolving Loans as of the
Amendment Effective Date, which shall be payable at
the Maturity Date and bear interest at the Interest
Rate. The Additional Term Loan shall be evidenced by
a promissory note (the "Additional Promissory Note")
in the form attached to this Schedule as Exhibit B.
The Term Loan and the Additional Term Loan shall
constitute "Loans" for all purposes of this
Agreement."
(b) section 1.2 shall be amended and restated in its
entirety as follows:
"The interest rate (the "Interest Rate") in effect
throughout each calendar month during the term of
this agreement shall be the thirty day LIBOR Rate in
effect on the first day of each month, plus 1.75% per
annum. Interest shall be calculated on the basis of a
360-day year for the actual number of days elapsed.
LIBOR Rate has the meaning set forth in Section 8
above."
(c) section 6.1 shall be amended as follows:
"APRIL 30, 1999" shall be replaced by "The maturity
date of the Loans (the "Maturity Date") shall be
APRIL 1, 2001"
6. The parties hereto consent and agree to the following: (i) on
the Amendment Effective Date, Lender will surrender for cancellation the
Promissory Note, dated April 30, 1998 (the "Promissory Note"), issued by
Borrower in favor of GBC for $36 million, and endorsed by GBC to WCAS VII and
(ii) upon its receipt of the Promissory Note as aforesaid, on the Amendment
Effective Date, Borrower will execute, deliver and issue to Lender, two amended
and restated promissory notes, dated as of the Amendment Effective Date and in
principal amount of $25 million and $11 million, respectively, and, except for
making provision for such principal amounts, substantially in the form attached
to this Amendment as Exhibits A.1 and A.2 (together, the "Amended and Restated
Promissory Notes"). The parties hereto further agree that from and after the
Amendment Effective Date, all references in the Agreement and each of the other
Loan Documents (as defined below) to the Promissory Note shall be deemed to be
references to the Amended and Restated Promissory Notes. (For purposes of this
Amendment, "Loan Documents"
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shall refer to the Agreement, the Promissory Note, the Amended and Restated
Promissory Notes, the Additional Promissory Note and any and all documents and
instruments executed at any time, and from time to time, in connection with any
of the foregoing.
7. WCAS VII, in its capacity as Lender, hereby consents to the
issuance by Borrower of the Demand Promissory Note, dated June 25, 1999, in the
amount of $4,975,103.28, to WCAS VII .
8. Except as expressly provided herein, all of the terms and
conditions of the Agreement and each of the other Loan Documents shall remain in
full force and effect. In furtherance of, but not in limitation of, the
preceding sentence of this paragraph, it is acknowledged and agreed that this
Amendment is limited strictly to its terms the Lender shall not have any
obligation to issue any further amendment with respect to the Agreement or any
other matter. Except as expressly provided herein, nothing contained herein
shall be, or be deemed to be, a waiver of, or shall in any way impair or
prejudice, any rights or powers of the Lender set forth in the Agreement or any
of the other Loan Documents.
9. In order to induce Lenders to enter into this Agreement, the
Borrower represents and warrants to the Lender, as of the date hereof and upon
giving effect to this Amendment, that the representations and warranties
contained in the Agreement are true, correct and complete in all respects on and
as of the date hereof to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case such representations and warranties shall have
been true, correct and complete in all respects on and as of such earlier date.
10. This Amendment shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit of the
parties hereto and the successors and assigns of Lender. The rights and
obligations of the Borrower hereunder and any interest therein may not be
assigned or delegated by any Borrower without the prior written consent of the
Lender.
11. In case any provision in or obligation hereunder shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
12. At any time or from time to time upon the request of WCAS VII,
the Borrower will, at its expense, promptly execute, acknowledge and deliver
such other documents and do such other acts and things as WCAS VII may
reasonably request in order to effect fully the purposes of this Amendment and
Loan Documents and to provide for payment of the Obligations in accordance with
the terms of this Amendment and the other Loan Documents. In furtherance and not
in limitation of the foregoing, the Borrower shall take, and cause each of its
subsidiaries to take, such actions as WCAS VII may reasonably request from time
to time (including, without
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limitation, the execution and delivery of guaranties, security agreements,
pledge agreements, mortgages, deeds of trust, landlord's consents and estoppels,
stock powers, financing statements and other documents, the filing or recording
of any of the foregoing, title insurance with respect to any of the foregoing
that relates to an interest in real property, and the delivery of stock
certificates and other collateral with respect to which perfection is obtained
by possession) to ensure that the Obligations are secured by the Collateral.
13. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
14. This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
As set forth herein, this Amendment shall become effective upon the execution of
a counterpart hereof by each of the parties hereto and receipt by each of the
Borrower and the Lender of written or telephonic notification of such execution
and authorization of delivery thereof.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
THE CERPLEX GROUP, INC. CERPLEX, INC.
By /s/ XXXXXXX XXXXXX By /s/ XXXXXXX XXXXXX
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AURORA ELECTRONICS GROUP, INC. CERPLEX MASS, INC.
By /s/ XXXXXXX XXXXXX By /s/ XXXXXXX XXXXXX
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WELSH, CARSON, XXXXXXXX
& XXXXX VII, L.P.
By /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
General Partner
