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EXHIBIT 4.28
WAIVER AGREEMENT
WAIVER AGREEMENT (this "Agreement"), dated as of June 30, 1997,
by and among THE CERPLEX GROUP, INC., a Delaware corporation (together with its
successors and assigns, the "Company"), THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY, XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY and NORTH ATLANTIC SMALLER
COMPANIES INVESTMENT TRUST PLC (collectively, the "Noteholders").
RECITALS:
A. The Company has entered into those certain separate
Amended and Restated Note Purchase Agreements, each dated as of April 9, 1997
(collectively, the "Note Purchase Agreement"), with each of the Noteholders,
pursuant to which the Company and the Noteholders agreed to, among other
things, the amendment and restatement of an aggregate principal amount of
$17,250,000 of the Company's Senior Subordinated Notes Due November 19, 2001
(as amended and restated, the "Notes").
B. The Noteholders are the current holders of 100% of the
Notes outstanding as of the Effective Date.
C. The Company has notified the Noteholders of certain
actual and potential Defaults and Events of Default under Section 6.18, Section
6.19, Section 6.20 and Section 6.21 of the Note Purchase Agreement (the
"Noticed Events of Default") and has requested that the Noteholders waive the
Noticed Events of Default.
D. The Noteholders are agreeable, subject to the terms
and conditions set forth below, to granting the aforesaid waivers as set forth
herein.
E. Unless otherwise expressly provided for herein,
capitalized terms used herein and defined in the Note Purchase Agreement are
used herein with the meanings ascribed to them in the Note Purchase Agreement.
AGREEMENT:
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
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SECTION 1. WAIVER.
Subject to the satisfaction of the conditions set forth in
Section 3, the Noteholders hereby waive, on the Effective Date, each of the
Noticed Events of Default and agree that the effectiveness of each of Section
6.18, Section 6.19, Section 6.20 and Section 6.21 of the Note Purchase
Agreement shall be temporarily suspended from and including the Effective Date
to and including the earlier to occur of (i) the date that any holder of Senior
Debt takes any action in respect of any default or any event of default under
any Senior Credit Document and (ii) July 10, 1997 (the "Reinstatement Date").
On and after the Reinstatement Date, each of Section 6.18, Section 6.19,
Section 6.20 and Section 6.21 of the Note Purchase Agreement shall be in full
force and effect. Except for the foregoing express waivers and suspensions,
the terms of this Agreement shall not operate as a waiver of, or otherwise
prejudice, the rights, remedies or powers of the Noteholders under the Note
Purchase Agreement, under the Notes or under applicable law and all of such
rights, remedies and powers are hereby expressly reserved.
SECTION 2. WARRANTIES AND REPRESENTATIONS.
To induce the Noteholders to enter into this Agreement, the
Company warrants and represents to the Noteholders that as of the Effective
Date:
2.1 CORPORATE ORGANIZATION AND AUTHORITY.
The Company:
(a) is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware;
(b) has all legal and corporate power and authority to
own and operate its Properties and to carry on its business as now conducted
and as presently proposed to be conducted;
(c) has all licenses, certificates, permits, franchises
and other governmental authorization necessary to own and operate its
Properties and to carry on its business as now conducted and as presently
proposed to be conducted, except where the failure to have such licenses,
certificates and permits, either individually or in the aggregate, would not
have, and could not reasonably be expected to have, a Material Adverse Effect;
and
(d) has duly qualified or has been duly licensed, and is
authorized to do business and is in good standing, as a foreign corporation in
each state except where the failure to be so qualified or licensed and
authorized and in good standing, either individually or in the aggregate, would
not have, and could not reasonably be expected to have, a Material Adverse
Effect.
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2.2 COMPLIANCE WITH LAW.
The Company:
(a) is not in violation of any law, ordinance,
governmental rule or regulation to which it is subject; and
(b) has not failed to obtain any license, certificate,
permit, franchise or other governmental authorization necessary to the
ownership of its Property or to the conduct of its business;
which violation or failure to obtain, either individually or in the aggregate,
would have, or could reasonably be expected to have, a Material Adverse Effect.
2.3 LEGAL AND AUTHORIZED; OBLIGATIONS ARE ENFORCEABLE.
(a) AUTHORIZATION. The execution and delivery by
the Company of this Agreement and the performance by the Company of its
obligations hereunder are within the corporate powers of the Company and do not
conflict with, result in any breach of the provisions of, constitute a default
under, or result in the creation of any Lien upon any Property of the Company
under the provisions of, any agreement, charter instrument, bylaw or other
instrument to which it is a party or by which it or any of its Property may be
bound.
(b) OBLIGATIONS ARE LEGAL AND ENFORCEABLE. The
execution and delivery by the Company of this Agreement have been duly
authorized by all necessary action on the part of the Company, and this
Agreement has been executed and delivered by one or more duly authorized
officers of the Company. This Agreement constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except that the enforceability thereof may be:
(i) limited by applicable bankruptcy,
reorganization, arrangement, insolvency, moratorium or other similar
laws affecting the enforceability of creditors' rights generally;
(ii) subject to the availability of
equitable remedies; and
(iii) with respect to indemnity and
contribution, limited by state or federal laws relating to Securities
or by the public policy underlying such laws.
2.4 NO DEFAULTS.
(a) NO OTHER DEFAULTS. No Defaults or Events of
Default exist, other than the Noticed Events of Default. No Senior Nonpayment
Default exists that has not
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been waived and no Senior Nonpayment Default Notice has been issued by any
holder of Senior Debt. No event has occurred and no condition exists that,
upon the execution, delivery and effectiveness of this Agreement would
constitute a Default or an Event of Default other than in respect of the
Noticed Events of Default.
(b) CHARTER INSTRUMENT, OTHER AGREEMENTS. The
Company is not in violation in any respect of any term of any charter
instrument or bylaw. Except with respect to the failure of the Company to pay
the promissory note payable to Lucent Technologies, Inc., the Company is not in
violation in any material respect of any term in any agreement or other
instrument to which it is a party or by which it or any of its Property may be
bound, which would have, or could reasonably be expected to have, a Material
Adverse Effect.
2.5 NO OTHER PAYMENTS.
Other than the restructure fee due to the holders of Senior
Debt on June 30, 1997 pursuant to Subsection 2.3C of the Xxxxx Fargo Credit
Agreement, the Company has made no payment, or given any other consideration,
to any Noteholder or to any holder of Senior Debt to induce any of such Persons
to enter into this Agreement or the Credit Agreement Waiver contemplated by
Section 3.2.
SECTION 3. CONDITIONS.
The waiver by the Noteholders set forth in Section 1 shall
become effective upon the satisfaction of the following conditions (the
"Effective Date"):
3.1 EXECUTION AND DELIVERY OF THIS AGREEMENT.
The Company and the Required Holders shall have executed and
delivered counterparts of this Agreement.
3.2 WAIVER BY HOLDERS OF SENIOR DEBT.
The Company and each holder of Senior Debt whose consent is
required therefor pursuant to the terms of the Senior Credit Documents shall
have executed and delivered waivers with respect to all defaults and all events
of default which exist under such Senior Credit Documents (including, without
limitation, each of such events that relate to each of the Noticed Events of
Default). The Company shall have delivered to each Noteholder a copy of the
Fifth Amendment to Credit Agreement and Limited Waiver (the "Credit Agreement
Waiver") entered into among the Company and the holders of Senior Debt, in the
form of the execution draft of the Credit Agreement Waiver previously delivered
to each Noteholder, together with a certification by a Senior Officer of the
Company stating that such copy is a true and correct copy and such Credit
Agreement Waiver cures or waives all defaults and all events of default which
exist under the Senior Credit Documents.
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3.3 NO DEFAULT; REPRESENTATIONS AND WARRANTIES TRUE.
After giving effect to Section 1 hereof, no Default or Event
of Default under the Note Purchase Agreement shall exist and the warranties and
representations set forth in Section 2 hereof shall be true and correct on the
Effective Date.
3.4 EXPENSES.
The Company shall have paid all costs and expenses of the
Noteholders relating to this Agreement (including, without limitation, any fees
and disbursements of their special counsel).
3.5 WAIVER BY HOLDERS OF SENIOR DEBT.
The waiver by the Noteholders set forth in Section 1 shall be
of no force or effect, and the Effective Date shall be deemed not to have
occurred, if the Company shall pay or cause to be paid, directly or indirectly,
any remuneration, whether by way of supplemental or additional interest, fee or
otherwise, to any creditor (including, without limitation, any holder of Senior
Debt, other than the restructure fee due to the holders of Senior Debt on June
30, 1997 pursuant to Subsection 2.3C of the Xxxxx Fargo Credit Agreement) as
consideration for, or as an inducement to, such creditor entering into any
forbearance, waiver, amendment or similar agreement, unless such renumeration
is concurrently paid, on the same terms, ratably to each Noteholder.
3.6 PROCEEDING SATISFACTORY.
All proceedings taken in connection with this Agreement shall
be satisfactory to the Noteholders and their special counsel. The Noteholders
and their special counsel shall have received copies of such documents and
papers as they may reasonably request in connection therewith, in form and
substance satisfactory to them.
SECTION 4. MISCELLANEOUS.
4.1 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH, AND GOVERNED BY, INTERNAL NEW YORK LAW.
4.2 DUPLICATE ORIGINALS.
Two or more duplicate originals of this Agreement may be
signed by the parties, each of which shall by an original but all of which
together shall constitute one and the same instrument. This Agreement may be
executed in one or more counterparts and shall be effective when at least one
counterpart shall have been executed by each party
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hereto, and each set of counterparts which, collectively, show execution by
each party hereto shall constitute one duplicate original.
4.3 EFFECT OF THIS AGREEMENT.
Except as specifically provided in this Agreement, no terms or
provisions of the Note Purchase Agreement have been modified or changed by this
Agreement and the terms and provisions of the Note Purchase Agreement shall
continue in full force and effect. This Agreement and the waivers contained
herein shall have and be in effect on and after the Effective Date.
4.4 WAIVERS AND AMENDMENTS OF THIS AGREEMENT.
Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, or by any action or inaction, but only
by an instrument in writing signed by the party against which enforcement of
the change, waiver, discharge or termination is sought.
4.5 SECTION HEADINGS.
The titles of the sections hereof appear as a matter of
convenience only, do not constitute a part of this Agreement and shall not
affect the construction hereof.
4.6 COSTS AND EXPENSES.
On the Effective Date, the Company shall pay all costs and
expenses of the Noteholders related hereto, including, but not limited to, the
statement for fees and disbursements of the Noteholders' special counsel
presented to the Company on the Effective Date for matters in connection with
this Agreement. The Company will also pay upon receipt of any statement
thereof, each additional statement for fees and disbursements of the
Noteholders' special counsel rendered after the Effective Date in connection
with this Agreement. The obligations of the Company under this Section 4.6
shall survive the payment or prepayment of the Notes and the termination of the
Note Purchase Agreement.
4.7 SURVIVAL.
All warranties, representations, certifications and covenants
made by the Company hereunder, or in any certificate or other instrument
delivered pursuant hereto or thereto, shall be considered to have been relied
upon by the Noteholders and shall survive the execution of this Agreement
regardless of any investigation made by or on behalf of the Noteholders. All
statements in any such certificate or other instrument shall constitute
warranties and representations of the Company hereunder.
[Remainder of Page Intentionally Blank. Next Page is Signature Page.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on their behalf by a duly authorized officer or agent
thereof, as the case may be, as of the date first above written.
THE CERPLEX GROUP, INC.
By__________________________
Name:
Title:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By:_________________________
Name:
Title:
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By:_________________________
Name:
Title:
NORTH ATLANTIC SMALLER COMPANIES
INVESTMENT TRUST PLC
By:_________________________
Name:
Title:
[Signature page to the Waiver Agreement among The Cerplex Group, Inc.
and the Noteholders listed therein]
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