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Exhibit 10.30
LIMITED WAIVER
THIS LIMITED WAIVER (this "Waiver") is dated as of October 31,
1996, 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 8 hereof, CERTECH Technology, Inc., Cerplex Mass., Inc., Cerplex
Limited, Apex Computer Company, Cerplex Subsidiary, Inc., Peripheral Computer
Support, Inc. ("PCS"), 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 First
Amendment to Credit Agreement and Limited Waiver dated as of April 15, 1996
(the "First Amendment"), by and among Company, Lenders and Administrative Agent
(as so amended, the "Credit Agreement"). Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Credit
Agreement.
RECITALS:
WHEREAS, Company has requested Lenders to waive certain
provisions of the Credit Agreement through November 30, 1996;
WHEREAS, on the terms and conditions set forth below, Lenders
have agreed to waive compliance with such provisions of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. WAIVER.
Subject to the terms and conditions set forth herein and in
reliance on the representations and warranties of Company herein contained,
Lenders hereby waive compliance with the provisions of:
(a) subsection 6.11 of the Credit Agreement with
respect to the real property leases and subleases of Company and its
Subsidiaries entered into or acquired by Company or any of its
Subsidiaries after October 14, 1994 for the period from and including
August 31, 1996 to and including November 30, 1996; provided, however,
Company shall not be required to obtain landlord waivers with respect
to (i) property located in Canada, France, Germany or the United
Kingdom if, in the opinion of counsel to Administrative Agent,
it is not customary in such countries to obtain such waivers,
and (ii) property, other than property that constitutes the
principal place of business of Company or any of its
Subsidiaries, that is (A) located
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in a state the laws of which do not create a statutory lien in favor
of a landlord on the personal property of a tenant and (B) subject to
a lease that does not create a contractual lien in favor of the
landlord on the personal property of the tenant;
(b) subsections 7.6A, 7.6B and 7.6C of the Credit
Agreement for the period from and including September 30, 1996 to and
including November 30, 1996;
(c) subsection 7.6D of the Credit Agreement for
the period from and including July 1, 1996 to and including November
30, 1996;
(d) subsection 8.2(i) of the Credit Agreement
with respect to the failure of Company to pay the promissory note
payable to Lucent Technology, Inc. for the period from and including
September 15, 1996 to and including November 30, 1996;
(e) subsection 8.2(ii) of the Credit Agreement
with respect to the failure of Company to comply with Sections 6.3 and
6.4 of the Note Purchase Agreement for the period from and including
September 30, 1996 to and including November 30, 1996;
(f) subsection 8.3 of the Credit Agreement with
respect to the failure of Company to comply with subsections 7.6A,
7.6B and 7.6C of the Credit Agreement for the period from and
including September 30, 1996 to and including November 30, 1996;
(g) subsection 8.3 of the Credit Agreement with
respect to the failure of Company to comply with subsection 7.6D of
the Credit Agreement for the period from and including July 1, 1996 to
and including November 30, 1996;
(h) subsection 8.5 of the Credit Agreement with
respect to the failure of Company to comply with subsection 6.11 of
the Credit Agreement for the period from and including August 31, 1996
to and including November 30, 1996;
(i) subsection 8.13 of the Credit Agreement for
the period from and including September 30, 1996 to and including
November 30, 1996; and
(j) subsection 2.4B(iii) of the Credit Agreement
with respect to the $350,000 received in respect of the assets sold to
Ascent Logic Corporation for the period from and including the date of
receipt of such proceeds to and including November 30, 1996 provided
that such proceeds are held in trust by Company for Lenders.
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SECTION 2. LIMITATION OF WAIVER.
Without limiting the generality of the provisions of
subsection 10.6 of the Credit Agreement, the waiver set forth above shall be
limited precisely as written and relates solely to the noncompliance by Company
with the provisions of subsections 2.4B(iii), 6.11, 7.6, 8.2(i), 8.2(ii), 8.3,
8.5 and 8.13 of the Credit Agreement in the manner and to the extent described
above. Nothing in this Waiver shall be deemed to:
(a) constitute a waiver of compliance by Company
with respect to (i) subsections 2.4B(iii), 6.11, 7.6, 8.2(i), 8.2(ii),
8.3, 8.5 or 8.13 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 Waiver) or may have in the future
under or in connection with the Credit Agreement or any other
instrument or agreement referred to therein.
Except as expressly set forth herein, the terms, provisions
and conditions of the Credit Agreement and the other Loan Documents shall
remain in full force and effect and in all other respects are hereby ratified
and confirmed.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
In order to induce Lenders to enter into this Waiver, Company
hereby represents and warrants that after giving effect to this Waiver:
(a) as of the date hereof, there exists no Event
of Default or Potential Event of Default under the Credit Agreement;
(b) except with respect to the matters disclosed
to Lenders prior to the date hereof, all representations and
warranties contained in the Credit Agreement and the other Loan
Documents are true, correct and complete in all material respects on
and as of the date hereof 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; and
(c) as of the date hereof, Company has performed
all agreements to be performed on its part as set forth in the Credit
Agreement.
SECTION 4. CONDITIONS PRECEDENT TO EFFECTIVENESS.
Sections 1(c) and 1(g) of this Waiver shall become effective as
of July 1, 1996, Sections 1(a) and 1(h) of this Waiver shall become effective as
of August 31, 1996, Section 1(d) of this Waiver shall become effective as of
September 15, 1996 and Sections 1(b), 1(e),
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1(f), 1(i) and 1(j) of this Waiver shall become effective as of September 30,
1996 only upon the satisfaction of all of the following conditions precedent:
(a) Company shall deliver to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed
copies, where appropriate, for each Lender and its counsel) the
following:
(i) counterparts of this Waiver executed
by Company and the Credit Support Parties (other than Modular
Computer Systems GmbH and Modcomp France S.A., which
counterparts may be delivered as soon as practicable after the
date hereof); and
(ii) signature and incumbency
certificates of the officers of Company executing this Waiver.
(b) Company shall deliver to Administrative Agent
a waiver, in form and substance satisfactory to Lenders, of Sections
6.3 and 6.4 of the Note Purchase Agreement duly executed by the
parties to the Note Purchase Agreement required to execute such
waiver.
SECTION 5. COUNTERPARTS; EFFECTIVENESS
This Waiver 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. This Waiver (other than the provisions of Section 1 hereof, the
effectiveness of which is governed by Section 4 hereof) shall become effective
upon the execution of a counterpart hereof by Company, Requisite Lenders and
each of the Credit Support Parties and receipt by Company and Administrative
Agent of written or telephonic confirmation of such execution and authorization
of delivery thereof.
SECTION 6. WARRANTS
Company and Lenders hereby agree that the Purchase Price (as
defined in that certain Warrant Agreement dated as of April 15, 1996 among
Company and Lenders) is reduced to $2.50 per share of the Common Stock, $0.001
par value per share, of Company, effective as of the date of execution of this
Waiver, and that Company shall deliver to Lenders an addendum to the existing
warrants or a replacement warrant evidencing such change as soon as practicable
after the execution of this Waiver.
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SECTION 7. GOVERNING LAW.
THIS WAIVER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
SECTION 8. ACKNOWLEDGEMENT AND CONSENT BY GUARANTORS
Company is a party to the Company Collateral Documents
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 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 this Waiver. 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," "Guaranteed 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," "Guaranteed 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 Credit 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 Waiver. Each Credit Support Party represents
and warrants that all representations and warranties contained in the Credit
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
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 they were true, correct and complete in all material
respects on and as of such earlier date.
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SECTION 9. FEES AND EXPENSES.
Company acknowledges and agrees 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 Waiver and the
documents and transactions contemplated hereby shall be for the account of the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
COMPANY:
THE CERPLEX GROUP, INC.
By:
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Name:
Title:
LENDERS:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
individually and as Administrative Agent
By:
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Name:
Title:
SUMITOMO BANK OF CALIFORNIA COMPANY
By:
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Name:
Title:
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BHF BANK AKTIENGESELLSCHAFT
(FORMERLY BERLINER HANDELS-UND
FRANKFURTER BANK)
By:
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Name:
Title:
By:
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Name:
Title:
COMERICA BANK CALIFORNIA
individually and as Administrative Agent
By:
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Name:
Title:
GUARANTORS:
CERTECH TECHNOLOGY, INC.
By:
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Name:
Title:
CERPLEX MASS., INC.
By:
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Name:
Title:
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CERPLEX LIMITED
By:
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Name:
Title:
APEX COMPUTER COMPANY
By:
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Name:
Title:
CERPLEX SUBSIDIARY, INC.
By:
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Name:
Title:
PERIPHERAL COMPUTER SUPPORT, INC.
By:
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Name:
Title:
MODCOMP/CERPLEX, L.P.
By: Cerplex Subsidiary, Inc., as general
partner
By:
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Name:
Title:
MODCOMP JOINT VENTURE, INC.
By:
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Name:
Title:
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MODULAR COMPUTER SERVICES, INC.
By:
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Name:
Title:
MODULAR COMPUTER SYSTEMS GMBH
By:
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Name:
Title:
MODCOMP FRANCE S.A.
By:
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Name:
Title:
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