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EXHIBIT 10.34
E X E C U T I O N C O P Y
THE CERPLEX GROUP, INC.
FOURTH AMENDMENT
TO CREDIT AGREEMENT AND LIMITED WAIVER
This FOURTH AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER (this
"AMENDMENT") is dated as of May 30, 1997 and entered into by and among THE
CERPLEX GROUP, INC., a Delaware corporation ("COMPANY"), the FINANCIAL
INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF ("LENDERS") and XXXXX FARGO
BANK, NATIONAL ASSOCIATION, as administrative agent for Lenders ("ADMINISTRATIVE
AGENT"), and, for purposes of Section 5 hereof, CERTECH Technology, Inc.,
Cerplex Mass., Inc., Cerplex Limited, Apex Computer Company, Cerplex Subsidiary,
Inc., Modcomp/Cerplex L.P., Modcomp Joint Venture, Inc., Modular Computer
Services, Inc., Modular Computer Systems GmbH and Modcomp France S.A.
(collectively, "GUARANTORS"), and is made with reference to that certain Credit
Agreement dated as of October 12, 1994, as amended by that certain First
Amendment to Credit Agreement and Limited Waiver dated as of April 15, 1996,
that certain Second Amendment to Credit Agreement and Limited Waiver dated as of
November 30, 1996 and that certain Third Amendment to Credit Agreement dated as
of April 9, 1997 (as so amended, the "CREDIT AGREEMENT"), by and among Company,
Lenders, Administrative Agent and Guarantors. Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the
Credit Agreement.
RECITALS
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
SECTION 1.1 AMENDMENTS TO SECTION 6; COMPANY'S AFFIRMATIVE COVENANTS.
A. Subsection 6.16 of the Credit Agreement is hereby amended to
read in its entirety as follows:
"6.16 NEW LEADERSHIP; FINANCIAL ADVISOR. Company
shall hire a new chief executive officer no later than June
30, 1997. In addition, Company shall continue to retain the
services of a financial advisor, satisfactory to Lenders,
through the Commitment Termination Date."
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SECTION 2. WAIVER
Subject to the terms and conditions set forth herein and in
reliance on the representations of Company herein contained, Lenders hereby
waiver compliance with the provisions of (i) subsection 7.7 of the Credit
Agreement to the extent necessary to permit Company to sell equipment originally
purchased by Company for $680,000 to Hewlett-Packard Company ("HP") for $1.00
pursuant to the exercise by HP of its rights under its contract with Company and
(ii) subsection 6.17 of the Credit Agreement to the extent necessary to permit
Company to file a Registration Statement on Form S-2 with respect to the
warrants issued to Lenders on the Third Amendment Effective Date on or prior to
June 3, 1997.
SECTION 3. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "FOURTH
AMENDMENT EFFECTIVE DATE"):
A. On or before the Fourth Amendment Effective Date, Administrative
Agent shall have received for each Lender counterparts hereof duly executed on
behalf of Company, Administrative Agent, each Lender and each Guarantor.
B. Administrative Agent shall have received:
1. Resolutions of Company's Board of Directors approving and
authorizing the execution, delivery, and performance of this Amendment,
certified as of the Fourth Amendment Effective Date by its corporate
secretary or an assistant secretary as being in full force and effect
without modification or amendment; and
2. Signature and incumbency certificates of the officers of
Company executing this Amendment.
C. Administrative Agent shall have received for distribution to each
Lender, in proportion to that Lender's Pro Rata Share, an amendment fee in an
amount equal to $50,000.
SECTION 4. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Company represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. CORPORATE POWER AND AUTHORITY. Company has all requisite corporate
power and authority to enter into this Amendment and to carry out the
transactions contemplated by,
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and perform its obligations under, the Credit Agreement as amended by this
Amendment (the "AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of the Company, as the case may
be.
C. NO CONFLICT The execution and delivery by Company of this Amendment
and the performance of the Amended Agreement do not and will not (i) violate any
provision of any law or any governmental rule or regulation applicable to
Company or any of its Subsidiaries, the Certificate or Articles of Incorporation
or Bylaws of Company or any of its Subsidiaries or any order, judgment or decree
of any court or other agency of government binding on Company or any of its
Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any Contractual Obligation of
Company or any of its Subsidiaries, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of Company or any of
its Subsidiaries (other than any Liens created under any of the Loan Documents
in favor of Administrative Agent on behalf of Lenders), or (iv) require any
approval of stockholders or any approval or consent of any Person under any
Contractual Obligation of Company or any of its Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by Company of this
Amendment and the performance by Company of the Amended Agreement do not and
will not require any registration with, consent or approval of, or notice to, or
other action to, with or by, any federal, state or other governmental authority
or regulatory body.
E. BINDING OBLIGATION. This Amendment and the Amended Agreement have
been duly executed and delivered by Company and are the legally valid and
binding obligations of Company, enforceable against Company in accordance with
their respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the First Amendment Effective Date 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 they were
true, correct and complete in all material respects on and as of such earlier
date.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Potential Event of Default.
SECTION 5. ACKNOWLEDGEMENT AND CONSENT
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Company is a party to the Company Collateral Documents, in
each case as amended through the Fourth Amendment Effective Date, pursuant to
which Company has created Liens in favor of Administrative Agent on certain
Collateral to secure the Obligations. Guarantors are a party to the Guaranty and
the Subsidiary Collateral Documents, in each case as amended through the First
Amendment Effective Date, pursuant to which each Guarantor has (i) guarantied
the Obligations and (ii) created Liens in favor of Administrative Agent on
certain Collateral to secure the obligations of such Guarantor under the
Guaranty. Company and Guarantors are collectively referred to herein as the
"CREDIT SUPPORT PARTIES", and the Guaranty, the Company Collateral Documents and
the Subsidiary Collateral Documents are collectively referred to herein as the
"CREDIT SUPPORT DOCUMENTS".
Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and this Amendment and
consents to the amendment of the Credit Agreement effected pursuant to this
Amendment. Each Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all Collateral encumbered
thereby will continue to guaranty or secure, as the case may be, to the fullest
extent possible the payment and performance of all "Obligations," "Guarantied
Obligations" and "Secured Obligations," as the case may be (in each case as such
terms are defined in the applicable Credit Support Document), including, without
limitation, the payment and performance of all such "Obligations," "Guarantied
Obligations" or "Secured Obligations," as the case may be, in respect of the
Obligations of Company now or hereafter existing under or in respect of the
Amended Agreement and the Notes defined therein.
Each Credit Support Party acknowledges and agrees that any of
the Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit Support Party
represents and warrants that all representations and warranties contained in the
Amended Agreement and the Credit Support Documents to which it is a party or
otherwise bound are true, correct and complete in all material respects on and
as of the Fourth Amendment Effective Date 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 they were true, correct
and complete in all material respects on and as of such earlier date.
Each Credit Support Party (other than Company) acknowledges
and agrees that (i) notwithstanding the conditions to effectiveness set forth in
this Amendment, such Credit Support Party is not required by the terms of the
Credit Agreement or any other Loan Document to consent to the amendments to the
Credit Agreement effected pursuant to this Amendment and (ii) nothing in the
Credit Agreement, this Amendment or any other Loan Document shall be deemed to
require the consent of such Credit Support Party to any future amendments to the
Credit Agreement.
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SECTION 6. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
1. On and after the Fourth Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to the
"Credit Agreement," "thereunder," "thereof" or words of like import
referring to the Credit Agreement shall mean and be a reference to the
Amended Agreement.
2. Without limiting the generality of the provisions of
subsection 10.6 of the Credit Agreement, the waiver set forth shall be
limited precisely as written and relates solely to the noncompliance by
Company with the provisions of subsections 6.17 and 7.7 of the Credit
Agreement in the manner and to the extent described above. Nothing in
this Amendment shall be deemed to:
(a) constitute a waiver of compliance by Company with
respect to (i) subsection 6.17 or 7.7 of the Credit Agreement
in any other instance or (ii) any other term, provision or
condition of the Credit Agreement or any other instrument or
agreement referred to therein; or
(b) prejudice any right or remedy that Administrative
Agent or any Lender may now have (except to the extent such
right or remedy was based upon existing defaults that will not
exist after giving effect to this Amendment) or may have in
the future under or in connection with the Credit Agreement or
any other instrument or agreement referred to therein.
3. Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
B. FEES AND EXPENSES. Company acknowledges that all costs, fees and
expenses as described in subsection 10.2 of the Credit Agreement incurred by
Administrative Agent and its counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of
Company.
C. HEADINGS. Section and subsection 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 or be given any substantive effect.
D. APPLICABLE LAW. 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
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INTERNAL LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
E. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate 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;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
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.
By: ______________________
Title: ______________________
CERTECH TECHNOLOGY, INC. (for
purposes of Section 5 only) as a Credit
Support Party
By: ______________________
Title: ______________________
CERPLEX MASS., INC. (for purposes
of Section 5 only) as a Credit Support
Party
By: ______________________
Title: ______________________
CERPLEX LIMITED (for purposes of
Section 5 only) as a Credit Support Party
By: ______________________
Title: ______________________
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APEX COMPUTER COMPANY (for
purposes of Section 5 only) as a Credit
Support Party
By: ______________________
Title: ______________________
CERPLEX SUBSIDIARY, INC. (for
purposes of Section 5 only) as a Credit
Support Party
By: ______________________
Title: ______________________
MODCOMP/CERPLEX L.P. (for
purposes of Section 5 only) as a Credit
Support Party
By: ______________________
Title: ______________________
MODCOMP JOINT VENTURE, INC.
(for purposes of Section 5 only) as a
Credit Support Party
By: ______________________
Title: ______________________
MODULAR COMPUTER SERVICES,
INC. (for purposes of Section 5 only) as a
Credit Support Party
By: ______________________
Title: ______________________
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MODULAR COMPUTER SYSTEMS
GMBH (for purposes of Section 5 only) as
a Credit Support Party
By: ______________________
Title: ______________________
MODCOMP FRANCE S.A. (for
purposes of Section 5 only) as a Credit
Support Party
By: ______________________
Title: ______________________
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, INDIVIDUALLY AND AS
ADMINISTRATIVE AGENT
By: ______________________
Title: ______________________
BHF-BANK AKTIENGESELLSCHAFT,
AS A LENDER
By: ______________________
Title: ______________________
CITIBANK, N.A., AS A LENDER
By: ______________________
Title: ______________________
