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EXHIBIT 4.17
WAIVER AND AMENDMENT AGREEMENT
WAIVER AND AMENDMENT AGREEMENT (this "Agreement"), dated as of October
31, 1996, 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 Note
Purchase Agreements, each dated as of November 19, 1993 (collectively, as
amended pursuant to the terms of each of the amendment agreements set forth in
Schedule A to this Agreement, the "Note Purchase Agreement" ), with each of the
Noteholders, pursuant to which the Company originally issued and sold to the
Noteholders
(i) an aggregate principal amount of Seventeen Million
Two Hundred Fifty Thousand Dollars ($17,250,000) of the Company's
Series A 9.00% Senior Subordinated Notes Due November 19, 2001 (as
amended, the "Notes"), and
(ii) an aggregate principal amount of Five Million Seven
Hundred Fifty Thousand Dollars ($5,750,000) of the Company's Series B
9.00% Senior Subordinated Notes Due November 19, 2001 (the "Series B
Notes"). The Company has prepaid the Series B Notes and such Series B
Notes are no longer issued and outstanding.
B. The Noteholders are the current holders of one hundred percent
(100%) of the Notes outstanding as of the Effective Date.
C. The Company and the Noteholders have entered into that certain
Warrant Agreement (the "Existing 1996 Warrant Agreement," and as amended
hereby, the "Amended 0000 Xxxxxxx Agreement"), dated as of April 15, 1996,
pursuant to which the Company issued one million warrants of the Company to the
Noteholders.
D. Pursuant to a notice to the Noteholders dated September 23,
1996, the Company notified the Noteholders of certain Defaults and Events of
Defaults under Section 6.3 and Section 6.4 of the Note Purchase Agreement (the
"Noticed Events of Default," such term to include, for purposes of avoidance of
doubt, all Defaults and Events of Defaults under Section 6.3 and Section 6.4 of
the Note Purchase Agreement that may have existed prior to the date of such
notice or after the date of such notice and prior to the Effective Date (as
hereinafter defined)) and the Company has requested that the Noteholders waive
the Noticed Events of Default.
E. In consideration of the aforesaid waivers, the Company has
agreed that the Existing 1996 Warrant Agreement shall be amended by changing
the definition of "Initial Purchase Price" therein from $6.00 to $2.50.
F. The Noteholders are agreeable, subject to the terms and
conditions set forth below, to granting the aforesaid waivers, and in
connection therewith, each of the Company and the Noteholders has agreed to
amend the Existing 1996 Warrant Agreement as set forth herein.
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G. 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:
SECTION 1. WAIVER.
Subject to the satisfaction of the conditions set forth in Section 4,
the Noteholders hereby waive, on the Effective Date, each of the Noticed Events
of Default and agree that the effectiveness of Section 6.3 and Section 6.4
shall be temporarily suspended from and including the Effective Date to and
including the earlier to occur of (a) 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 (b) November 30, 1996 (the "Reinstatement Date").
After the Reinstatement Date, Section 6.3 and Section 6.4 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. AMENDMENT TO THE EXISTING 1996 WARRANT AGREEMENT;
AFFIRMATION.
2.1 Amendment to the Existing 1996 Warrant Agreement.
The Company and, subject to the satisfaction of the conditions set
forth in Section 4, each of the Noteholders hereby amend and restate the
definition of "Initial Purchase Price" in the Existing 1996 Warrant Agreement
as set forth below:
INITIAL PURCHASE PRICE -- means Two Dollars and Fifty Cents ($2.50).
2.2 AFFIRMATION OF OBLIGATIONS.
The Company hereby acknowledges and affirms all of its obligations
under the terms of the Note Purchase Agreement and under the Existing 1996
Warrant Agreement, as amended hereby.
SECTION 3. 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:
3.1 CORPORATE ORGANIZATION AND AUTHORITY.
The Company:
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(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 authorizations 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.
3.2 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.
3.3 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 in any 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
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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.
3.4 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 been waived and no Senior Nonpayment
Default Notice has been issued by any holder of Senior Debt.
(B) AMENDED FINANCING DOCUMENTS. 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.
(C) 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.
SECTION 4. CONDITIONS.
The waiver by the Noteholders set forth in Section 1 and the amendment
described in Section 2 shall become effective on October 31, 1996 (the
"Effective Date"), subject to all of the following conditions having been
satisfied on or prior to such date:
4.1 EXECUTION AND DELIVERY OF THIS AGREEMENT.
The Company and the Required Holders and all of the Warrantholders (as
such term is defined in the Existing 1996 Warrant Agreement) shall have
executed and delivered counterparts of this Agreement.
4.2 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
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(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 Limited Waiver entered into among the Company and the holders of
Senior Debt, in the form of the execution draft of the Limited 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 Limited Waiver cures or waives all defaults and all events of default
which exist under the Senior Credit Documents.
4.3 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 3 hereof shall be true and correct on the
Effective Date.
4.4 AUTHORIZATION OF TRANSACTIONS.
The Company shall have authorized, by all necessary corporate action,
its execution, delivery and performance of this Agreement and the consummation
of all transactions contemplated by this Agreement and evidence of the same
shall have been delivered to the Noteholders.
4.5 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).
4.6 PROCEEDINGS 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 5. MISCELLANEOUS.
5.1 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH, AND GOVERNED BY, INTERNAL NEW YORK LAW.
5.2 DUPLICATE ORIGINALS.
Two or more duplicate originals of this Agreement may be signed by the
parties, each of which shall be 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 hereto, and each set of counterparts which,
collectively, show execution by each party hereto shall constitute one
duplicate original.
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5.3 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. Except as specifically provided in this
Agreement, no terms or provisions of the Existing 1996 Warrant Agreement have
been modified or changed by this Agreement and the terms and provisions of the
Existing 1996 Warrant Agreement, as amended hereby, shall continue in full
force and effect. This Agreement and the waivers and amendments contained
herein shall have and be in effect on and after the Effective Date.
5.4 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.
5.5 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.
5.6 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 5.6 shall survive the payment
or prepayment of the Notes and the termination of the Note Purchase Agreement.
5.7 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
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Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President and CFO
Accepted:
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By
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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 AND AMENDMENT AGREEMENT among THE CERPLEX GROUP,
INC. and the Noteholders listed therein.]
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SCHEDULE A
Amendment No. 1 to Note Purchase Agreement dated as of May 26, 1994.
Amendment No. 2 to Note Purchase Agreement dated as of July 29, 1994.
Amendment Agreement dated as of October 27, 1994.
Waiver and Amendment Agreement dated as of April 15, 1996.
Schedule A-1
