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Exhibit 4.44
AMENDMENT NO. 6
TO LOAN AND SECURITY AGREEMENT
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May 9, 2001
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Congress Financial Corporation ("Lender"), Waxman Consumer Products
Group Inc., a Delaware corporation ("Waxman Group"), Medal of Pennsylvania,
Inc., a Delaware corporation formerly known as WOC Inc. ("Medal"), Western
American Manufacturing, Inc., a Delaware corporation ("WAMI"), WAMI Sales, Inc.,
a Delaware corporation ("WAMI Sales", and together with Waxman Group, Medal and
WAMI, each individually, a "Borrower" and collectively, "Borrowers"), Waxman
Industries, Inc., a Delaware corporation ("Waxman Industries"), Waxman USA Inc.,
a Delaware corporation ("Waxman USA") and TWI, International, Inc., a Delaware
corporation ("TWI", and together with Waxman Industries and Waxman USA, each
individually, a "Guarantor" and collectively, "Guarantors") have entered into
certain financing arrangements pursuant to which Lender may make loans and
advances and provide other financial accommodations to Borrowers as set forth in
the Loan and Security Agreement, dated as of June 17, 1999, by and among Lender,
Borrowers and Guarantors (as amended by Amendment No. 1 to Loan and Security
Agreement dated as of December 8, 1999, Amendment No. 2 to Loan and Security
Agreement dated as of March 29, 2000, Amendment No. 3 and Waiver to Loan and
Security Agreement dated as of May 1, 2000, Amendment No. 4 and Consent to Loan
and Security Agreement, dated as of July 10, 2000, Amendment No. 5 and Consent
to Loan and Security Agreement, dated March 30, 2001 and as the same may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, the "Loan Agreement"), and other agreements, documents and instruments
referred to therein or at any time executed and/or delivered in connection
therewith or related thereto, including this Amendment (all of the foregoing,
together with the Loan Agreement, as the same now exist or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced, being
collectively referred to herein as the "Financing Agreements"). Unless otherwise
defined herein, all capitalized terms used herein shall have the meanings
assigned to such terms in the Loan Agreement.
Borrowers and Guarantors have requested that Lender agree to decrease
the amount of the Maximum Credit to $15,000,000, and Lender is willing to agree
to such request, subject to the terms and conditions contained herein.
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In consideration of the foregoing, and the agreements and covenants
contained herein, and other good and valuable consideration, the adequacy and
sufficiency of which are hereby acknowledge, the parties hereto agree as
follows:
1. AMENDMENTS.
1.1 The definition of "Maximum Credit" in Section 1.48 of the Loan
Agreement is hereby amended and restated as follows:
"1.48 `Maximum Credit' shall mean the amount of $15,000,000."
1.2 Section 12.1(a) of the Loan Agreement is hereby amended by
deleting the words "on the earlier of: (i) the date which is the third (3rd)
anniversary of the date hereof or the maturity date of the Senior Notes as the
same may be extended or refinanced (such earlier date being referred to as the
'Renewal Date')" and replacing them with the following: "on the date which is
the third (3rd) anniversary of the date hereof (such date being referred to as
the 'Renewal Date')."
1.3 Section 12.1(c) of the Loan Agreement is hereby amended by
deleting the table immediately following the colon in the first sentence of such
section and replacing it with the following:
"Amount Period
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(i) $400,000 From June 18, 2000 to and including June 17,
2001
(ii) $200,000 From June 18, 2001 to and including Xxxxx 00,
0000
(xxx) $150,000 If the term of this Agreement is extended,
from the first day of the then current term
to and including the date which is sixty
(60) days prior to end of the then current
term"
2. AMENDMENT FEE. In addition to all other fees, charges, interests and
expenses payable by Borrowers to Lender under the Loan Agreement and the other
Financing Agreements, Borrowers shall jointly and severally pay to Lender a fee
for entering into this Amendment and the transactions referred to herein in the
amount of $5,000, which amount is fully earned and payable as of the date hereof
and may be charged directly to any Borrower's loan account(s) maintained by
Lender.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. Each Borrower and each
Guarantor, jointly and severally, individually and collectively, represents,
warrants and covenants with and to Lender as follows, which representations,
warranties and covenants are continuing and shall survive the execution and
delivery hereof, the truth and accuracy of, or compliance with each, together
with the representations, warranties and covenants in the other Financing
Agreements,
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being a continuing condition of the making or providing of any Loans or Letter
of Credit Accommodations by Lender to Borrowers:
3.1 This Amendment has been duly authorized, executed and delivered
by Borrowers and Guarantors, and the agreements and obligations of Borrowers and
Guarantors contained herein constitute legal, valid and binding obligations of
Borrowers and Guarantors enforceable against Borrowers and Guarantors in
accordance with their respective terms.
3.2 Neither the execution and delivery of this Amendment or any
other agreements, documents or instruments in connection herewith or therewith,
nor the consummation of the transactions herein or therein contemplated, nor
compliance with the provisions hereof or thereof are in contravention of any law
or regulation or any order or decree of any court or governmental
instrumentality applicable to Borrowers or Guarantors or any of their respective
Subsidiaries in any respect, or conflicts with or result in the breach of, or
constitutes a default in any respect under any mortgage, deed of trust, security
agreement, agreement or instrument to which any Borrower or Guarantor is a party
or may be bound, or violates any provision of the Certificates of Incorporation
or By-Laws of Borrowers or Guarantors.
3.3 No Event of Default or act, condition or event which with notice
or passage or time or both would constitute an Event of Default, exists or has
occurred and is continuing.
4. CONDITIONS PRECEDENT. The amendments set forth herein shall be
effective upon the satisfaction of each of the following conditions precedent in
a manner satisfactory to Lender:
4.1 the receipt by Lender of an original of this Amendment, duly
authorized, executed and delivered by Borrowers and Guarantors;
4.2 the receipt by Lender of such amounts (if any) as may be
necessary to reduce the aggregate outstanding amount of all Borrowers' Loans and
Letter of Credit Accommodations to less than $15,000,000;
4.3 all requisite corporate action and proceedings in connection
with this Amendment shall be satisfactory in form and substance to Lender, and
Lender shall have received all information and copies of all documents,
including records of requisite corporate action and proceedings which Lender may
have requested in connection herewith or therewith, such documents where
requested by Lender or its counsel to be certified by appropriate corporate
officers or governmental authorities; and
4.4 no Event of Default shall have occurred and be continuing and no
event shall have occurred or condition be existing and continuing which, with
notice or passage of time or both, would constitute an Event of Default.
5. GENERAL.
5.1 EFFECT OF THIS AMENDMENT. Except as modified and consented
pursuant hereto, no
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other changes or modifications to the Financing Agreements are intended or
implied and in all other respects the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
date hereof. To the extent of conflict between the terms of this Amendment and
the Financing Agreements, the terms of this Amendment shall control.
5.2 FURTHER ASSURANCES. The parties hereto shall execute and deliver
such additional documents and take such additional action as may be necessary to
effectuate the provisions and purposes of this Amendment.
5.3 GOVERNING LAW. The rights and obligations hereunder of each of
the parties hereto shall be governed by and interpreted and determined in
accordance with the internal laws of the State of New York (without giving
effect to principles of conflicts of laws).
5.4 BINDING EFFECT. This Amendment is binding upon and shall inure
to the benefit of Lender, Borrowers, Guarantors and their respective successors
and assigns. Any acknowledgment or consent contained herein shall not be
construed to constitute a consent any other or further action by Borrowers or
Guarantors or to entitle Borrowers or Guarantors to any other consent. The Loan
Agreement and this Amendment shall be read and construed as one agreement.
5.5 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original
but all of which when taken together shall constitute one and the same
instrument. In making proof of this Amendment, it shall not be necessary to
produce or account for more than one counterpart thereof signed by each of the
parties hereto. This Amendment may be executed and delivered by telecopier with
the same force and effect as if it were a manually executed and delivered
counterpart.
Very truly yours,
WESTERN AMERICAN MANUFACTURING,
INC.
By: /s/ Xxxx Xxxxxx
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Title: Secretary/Treasurer
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WAXMAN CONSUMER PRODUCTS
GROUP, INC.
By: /s/ Xxxx Xxxxxx
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Title: Treasurer
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[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PRIOR PAGE]
WAXMAN USA INC.
By: /s/ Xxxx Xxxxxx
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Title: VP - Finance
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MEDAL OF PENNSYLVANIA, INC.,
formerly known as WOC Inc.
By: /s/ Xxxx Xxxxxx
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Title: VP - Finance
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WAMI SALES, INC.
By: /s/ Xxxx Xxxxxx
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Title: Secretary/Treasurer
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WAXMAN INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxx
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Title: CFO
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TWI, INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxx
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Title: Secretary/Treasurer
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ACCEPTED AND AGREED:
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxx Xxxxxxx
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Title: VP
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