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EXHIBIT 4.18
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THE CERPLEX GROUP, INC.
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WAIVER AND AMENDMENT AGREEMENT
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DATED DECEMBER 9, 1996
$17,250,000
SERIES A SENIOR SUBORDINATED NOTES DUE NOVEMBER 19, 2001
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WAIVER AND AMENDMENT AGREEMENT
WAIVER AND AMENDMENT AGREEMENT (this "Agreement"), dated December 9,
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 and as in effect prior to the effectiveness of
this Agreement, the "Existing Note Purchase Agreement," and, as amended by this
Agreement, the "Amended 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. 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 Existing 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 Existing 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 of the October 1996 Waiver (as hereinafter defined)) and the
Company has requested that the Noteholders continue the waiver of such Noticed
Events of Default provided for in the October 1996 Waiver until [December 31,
1996].
D. Pursuant to a Waiver and Amendment Agreement dated as of
October 31, 1996, the Noteholders waived the aforesaid Noticed Events of
Default until November 30, 1996 and, pursuant to a letter agreement dated
November 26, 1996, extended such waiver until December 9, 1996 (the "October
1996 Waiver").
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E. The Company has further requested that certain of the
provisions in the Existing Note Purchase Agreement be amended, as more
particularly provided herein.
F. The Noteholders are agreeable, subject to the terms and
conditions set forth below, to granting the aforesaid waivers and modifying the
Existing Note Purchase Agreement as hereinafter set forth, and in connection
therewith, each of the Company and the Noteholders has agreed to amend the
Existing Note Purchase Agreement as set forth herein.
AGREEMENT:
NOW THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS.
The terms used herein and not defined herein shall have the meanings
assigned to such terms in the Existing Note Purchase Agreement. As used in this
Agreement, the following terms have the respective meanings specified below:
"AGREEMENT, THIS" -- means this Waiver and Amendment Agreement, as it
may be amended from time to time.
"AMENDED NOTE PURCHASE AGREEMENT" -- Recital A.
"COMPANY" -- the introductory sentence.
"EFFECTIVE DATE" -- Section 5.
"EXISTING NOTE PURCHASE AGREEMENT" -- Recital A.
"1996 WARRANT AGREEMENT" -- Section 3.2.
"NOTEHOLDERS" -- the introductory sentence.
"NOTES" -- Recital A.
"NOTICED EVENTS OF DEFAULT" -- Recital C.
"OCTOBER 0000 XXXXXX" -- Recital C.
SECTION 2. WAIVER.
Subject to the satisfaction of the conditions set forth in Section 4,
the Noteholders hereby continue the waiver provided in the October 1996 Waiver
in respect of each of the Noticed Events of Default until [December 31, 1996]
and agree that the effectiveness of Section 6.3 and Section 6.4 shall be
temporarily suspended from and including the effective date of the October 0000
Xxxxxx 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
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any Senior Credit Document and (b) [December 31, 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 3. AMENDMENTS TO THE EXISTING NOTE PURCHASE AGREEMENT;
1996 WARRANT AGREEMENT; AFFIRMATION.
3.1 AMENDMENTS TO THE EXISTING NOTE PURCHASE AGREEMENT.
The Company and, subject to the satisfaction of the conditions set
forth in Section 5, each of the Noteholders hereby consent and agree to the
amendments to the Existing Note Purchase Agreement set forth in Exhibit A to
this Agreement. Each such amendment is incorporated herein by reference as if
set forth verbatim in this Agreement.
3.2 AMENDMENT TO THE EXISTING 1996 WARRANT AGREEMENT.
In connection with the October 1996 Waiver, that certain Warrant
Agreement (the "1996 Warrant Agreement"), dated as of April 15, 1996, among the
Company and the Noteholders was changed by amending and restating the
definition of "Initial Purchase Price" therein to mean $2.50. For purposes of
the avoidance of doubt and in confirmation of said amendment, each of the
Warrant Certificates (as such term is defined in the 1996 Warrant Agreement)
issued under the 1996 Warrant Agreement and currently outstanding as well as
Exhibit A to the 1996 Warrant Agreement are hereby further amended and modified
by changing the references therein to "initial purchase price" and "Purchase
Price" from "Six Dollars ($6.00) per share" to "Two Dollars and Fifty Cents
($2.50) per share." This amendment to each of the Warrant Certificates
currently outstanding shall be effective without any further action required on
the part of the Noteholders or the Company and without the need to submit such
Certificates to Company for any notation of said change thereon or to otherwise
exchange such Certificates for new Warrant Certificates.
3.3 AFFIRMATION OF OBLIGATIONS.
The Company hereby acknowledges and affirms all of its obligations
under the terms of the Existing Note Purchase Agreement, as amended hereby, and
the 1996 Warrant Agreement and the Warrant Certificates issued thereunder, as
amended hereby.
SECTION 4. 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:
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4.1 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 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.
4.2 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.
4.3 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 and under the Amended Note Purchase Agreement
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.
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(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 and the Amended
Note Purchase Agreement constitute legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with their respective 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.
4.4 PENDING LITIGATION.
Except as set forth in Schedule 4.4, there are no proceedings, actions
or investigations pending or, to the knowledge of the Company, threatened
against or affecting the Company in any court or before any Governmental
Authority or arbitration board or tribunal that, either individually or in the
aggregate, would have or could reasonably be expected to have a Material
Adverse Effect. The Company is not in default with respect to any judgment,
order, writ, injunction or decree of any court, Governmental Authority or
arbitration board or tribunal that, either individually or in the aggregate,
would have or could reasonably be expected to have a Material Adverse Effect.
Except as previously disclosed to the Noteholders, the Company has not
received any notice of termination of any material contract, lease or other
agreement or suffered any material damage, destruction or loss (whether or not
covered by insurance) or had any employee strike, work-stoppage, slowdown or
lock-out or any substantial, non-frivolous threat directed to it of any
imminent strike, work-stoppage, slowdown or lock-out.
4.5 GOVERNMENTAL CONSENT.
Neither the nature of the Company, nor of any of its businesses or
Properties, nor any relationship between the Company and any other Person, nor
any circumstance in connection herewith or in connection with the execution and
delivery of this Agreement is such as to require a consent, approval or
authorization of, or filing, registration or qualification with, any
Governmental Authority on the part of the Company as a condition to the
execution and delivery thereof.
4.6 NO DEFAULTS.
(A) NO OTHER DEFAULTS. No Defaults or Events of Default
exist, other than the Noticed Events of Default.
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(B) 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.
(C) CHARTER INSTRUMENT, OTHER AGREEMENTS. The Company is
not in violation in any respect of any term of any charter instrument
or bylaw. Except as set forth in Schedule 4.6, 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 5. CONDITIONS.
The waiver by the Noteholders set forth in Section 2 and the consent
of the Noteholders to the amendments described in Section 3 shall become
effective on the date (the "Effective Date") upon which all of the following
conditions have been satisfied:
5.1 EXECUTION AND DELIVERY OF THIS AGREEMENT.
The Company and the Required Holders shall have executed and delivered
counterparts of this Agreement.
5.2 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 events of default which
exist under such Senior Credit Documents, all in form and scope satisfactory to
the Noteholders in their sole discretion. The Company shall have delivered to
each Noteholder a copy of the Second Amendment to Credit Agreement and Limited
Waiver entered into among the Company and the holders of Senior Debt, together
with a certification by a Senior Officer of the Company stating that such copy
is a true and correct copy and such Second Amendment to Credit Agreement and
Limited Waiver cures or waives all events of default which exist under the
Senior Credit Documents as of the date hereof.
5.3 NO DEFAULT; REPRESENTATIONS AND WARRANTIES TRUE.
After giving effect to Section 2, hereof, no Default or Event of
Default under the Amended Note Purchase Agreement shall exist, the warranties
and representations set forth in Section 4 hereof shall be true and correct on
the Effective Date, and the Noteholders shall have received a certificate,
dated as of the Effective Date and signed by a Senior Officer, certifying to
such matters, certifying that all of the conditions specified in this Section 5
have been satisfied.
5.4 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
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contemplated by this Agreement and evidence of the same shall have been
delivered to the Noteholders. The Noteholders shall have received a
certificate, dated as of the Effective Date and signed by the Secretary or the
Assistant Secretary of the Company, certifying to the resolutions in respect of
such authorization and to such other matters as the Noteholders shall
reasonably request.
5.5 OPINIONS OF COUNSEL.
The Noteholders shall have received from each of (a) Xxxxxxx, Xxxxxxx
& Xxxxxxxx, counsel to the Company, and (b) Xxxx & Xxxxxx, a legal opinion
substantially in the form set forth in Exhibit B1 and Exhibit B2, respectively,
and as to such other matters as the Noteholders may reasonably request.
5.6 EXPENSES.
The Company shall have paid all costs and expenses to the Noteholders
relating to this Agreement in accordance with Section 6.6 (including, without
limitation, any attorney's fees and disbursements).
5.7 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 6. MISCELLANEOUS.
6.1 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH, AND GOVERNED BY, INTERNAL NEW YORK LAW.
6.2 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.
6.3 EFFECT OF THIS AGREEMENT.
Except as specifically provided in this Agreement, no terms or
provisions of the Existing Note Purchase Agreement have been modified or
changed by this Agreement and the terms
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and provisions of the Existing Note Purchase 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.
6.4 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.
6.5 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.
6.6 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 6.6 shall survive the payment
or prepayment of the Notes and the termination of the Amended Note Purchase
Agreement.
6.7 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: Xxxx X. Xxxxxxxxx
Title: Vice President
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By
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Name: Xxxx Xxxxxxx
Title: Senior Investment Officer
NORTH ATLANTIC SMALLER COMPANIES INVESTMENT TRUST PLC
By
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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.
Waiver and Amendment Agreement dated as of October 31, 1996 (as extended by
that certain letter agreement dated November 26, 1996)
THE CERPLEX GROUP, INC. Schedule A-1 WAIVER AND AMENDMENT AGREEMENT
