1
Exhibit 4.43
CONGRESS FINANCIAL CORPORATION
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 000-0000
xxxx://xxx.xxxxxxxxxxxxxxxxx.xxx
[FIRST UNION LOGO]
AMENDMENT NO. 5 AND CONSENT
TO LOAN AND SECURITY AGREEMENT
------------------------------
March 30, 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 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 consent to the sale
by Medal of all or substantially all of its assets (the "Medal Assets"), and
Lender is willing to provide such consent, subject to the terms and conditions
contained herein.
A First Union Company
2
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. AMENDMENT. Section 9.15 of the Loan Agreement is hereby amended and
restated as follows:
"9.15 ADJUSTED NET WORTH. Waxman Industries and its Subsidiaries
shall at all times maintain Adjusted Net Worth of not less than
$15,000,000."
2. CONSENTS. Subject to the terms and conditions contained herein,
notwithstanding anything to the contrary contained in Section 9.7 of the Loan
Agreement, the Lender consents to the sale of the Medal Assets; PROVIDED, that
each of the following conditions is satisfied as determined by Lender in good
faith: (a) as of the date of such sale and after giving effect thereto, no Event
of Default or act, condition or event with notice or the passage of time or both
would constitute an Event of Default shall have occurred and be continuing, (b)
such sale shall have been consummated by not later than April 13, 2001, (c)
Lender shall have received all material documents and agreements relating to
such sale (the "Sale Documents"), which shall be in form and substance
satisfactory to Lender, (d) on the date of such sale, Lender shall have received
cash proceeds from such sale of not less than $800,000 in immediately available
funds for application to the Obligations in such order and manner as Lender may
determine, (c) on the date of such sale, the aggregate outstanding principal
amount of all Loans and Letter of Credit Accommodations to Medal shall not be
greater than $800,000 and (f) after the date of such sale, Medal shall promptly
remit to Lender all amounts received by Medal pursuant to the Sale Documents for
application to the Obligations in such order and manner as Lender may determine.
3. LOANS TO MEDAL. Notwithstanding anything to the contrary contained
in the Loan Agreement and the other Financing Documents, Medal shall have no
right to request any Loans or a Letter of Credit Accommodations, and Lender
shall have no obligation to make or cause to be made any Loans or Letter of
Credit Accommodations to or for the account of Medal.
4. 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.
5. 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,
-2-
3
being a continuing condition of the making or providing of any Loans or Letter
of Credit Accommodations by Lender to Borrowers.
5.1 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.
5.2 Neither the execution and delivery of this Amendment or the Sale
Documents, 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.
5.3 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.
6. CONDITIONS PRECEDENT. The amendments and consent set forth herein
shall be effective upon the satisfaction of each of the following conditions
precedent in a manner satisfactory to Lender:
6.1 the receipt by Lender of an original of this Amendment, duly
authorized, executed and delivered by Borrowers and Guarantors;
6.2 the receipt by Lender of such reports as to the Collateral and the
lending formulas of each Borrower as Lender shall reasonably request, which
shall be in form and substance satisfactory to Lender;
6.3 all requisite corporate action and proceedings in connection with
this Amendment and the Sale Documents 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;
6.4 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; and
-3-
4
6.5 the receipt by Lender of an original of the Net Worth Adjustment
Letter, substantially in the form of Exhibit A hereto, duly authorized, executed
and delivered by Borrowers and Guarantors.
7. GENERAL.
7.1 EFFECT OF THIS AMENDMENT. Except as modified and consented pursuant
hereto, no 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.
7.2 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.
7.3 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).
7.4 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.
7.5 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
-------------------------------
Title: Secretary/Treasurer
----------------------------
[SIGNATURES CONTINUE ON NEXT PAGE]
-4-
5
[SIGNATURES CONTINUED FROM PRIOR PAGE]
WAXMAN CONSUMER PRODUCTS
GROUP, INC.
By: /s/ Xxxx Xxxxxx
------------------------
Title: Treasurer
---------------------
WAXMAN USA INC.
By: /s/ Xxxx Xxxxxx
------------------------
Title: VP - Finance
---------------------
MEDAL OF PENNSYLVANIA, INC.,
formerly own as WOC Inc.
By: /s/ Xxxx Xxxxxx
------------------------
Title: VP - Finance
---------------------
WAMI SALES, INC.
By: /s/ Xxxx Xxxxxx
------------------------
Title: Secretary/Treasurer
---------------------
WAXMAN INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxx
------------------------
Title: VP and CFO
---------------------
TWI, INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxx
------------------------
Title: Secretary/Treasurer
---------------------
ACCEPTED AND AGREED
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxx Xxxxxxx
----------------------
Title: VP
--------------------
-5-
6
Exhibit A
Net Worth Adjustment Letter
---------------------------
See Attached
7
CONGRESS FINANCIAL CORPORATION
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 000-0000
xxxx://xxx.xxxxxxxxxxxxxxxxx.xxx
[FIRST UNION LOGO]
NET WORTH ADJUSTMENT LETTER
---------------------------
March 30, 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 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 Agreement (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 enter into
Amendment No. 5 and Consent to Loan and Security Agreement dated of even date
herewith ("Amendment No. 5") pursuant to which, among other things, Lender
consents to sale of substantially all of the assets of Medal on the terms and
subject to the conditions set forth therein.
A First Union Company
8
In order to induce Lender to enter into the Amendment No. 5, the
parties hereto hereby agree as follows:
1. As soon as possible, but in no event later than June 22, 2001,
Borrowers and Guarantors shall deliver to Lender updated projected financial
statements of Borrowers and Guarantors (including forecasted loan availability,
income statements, cash flow statements and balance sheets) for the period
beginning July 1, 2001 and ending June 30, 2003, which shall include, but not be
limited to, projections of the Adjusted Net Worth of Waxman Industries and its
Subsidiaries, together with such supporting information with respect thereto as
Lender may reasonably request, and shall be (a) prepared on a monthly basis
through and including June 30, 2002 and on a quarterly basis thereafter in a
format consistent with the projected financial statements previously delivered
to Lender by Borrowers and Guarantors, (b) in form and substance reasonably
satisfactory to Lender and (c) accompanied by a certificate of and authorized
officer of Waxman Industries to the effect that such projected financial
statements represent Borrowers' and Guarantors' reasonable best estimate of the
future financial performance of Borrowers and Guarantors for the periods set
forth therein and have been prepared on the basis of assumptions set forth
therein which are fair and reasonable in view of the current and reasonably
foreseeable business conditions (collectively, the "Projections").
2. On and after the receipt by Lender of the Projections, Lender shall
change the amount of the Adjusted Net Worth of Waxman Industries and its
Subsidiaries required to be maintained by Waxman Industries and its Subsidiaries
as set forth in Section 9.15 of the Loan Agreement, effective upon written
notice by Lender to Waxman Industries, to an amount equal to the greater of
$15,000,000 or ninety-five (95%) percent of the amount of the Adjusted Net Worth
as of July 1, 2001 as set forth in the Projections.
3. The failure of Borrowers and Guarantors to comply with any of their
obligations hereunder (including the failure of Borrowers and Guarantors to
deliver the Projections as provided herein) shall constitute an Event of
Default.
4. This Agreement shall be binding upon all Borrowers and Guarantors
and their respective successors and assigns and shall inure to the benefit of
Lender and its successors, endorsees, transferees and assigns.
5. This Agreement 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. This Agreement 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
-------------------------
Title: Secretary/Treasurer
----------------------
[SIGNATURES CONTINUE ON NEXT PAGE]
-2-
9
[SIGNATURES CONTINUED FROM PRIOR PAGE)
WAXMAN CONSUMER PRODUCTS
GROUP, INC.
By: /s/ Xxxx Xxxxxx
--------------------------
Title: Treasurer
-----------------------
WAXMAN USA INC.
By: /s/ Xxxx Xxxxxx
--------------------------
Title: VP - Finance
-----------------------
MEDAL OF PENNSYLVANIA, INC.,
formerly known as WOC Inc.
By: /s/ Xxxx Xxxxxx
--------------------------
Title: VP - Finance
-----------------------
WAMI SALES, INC.
By: /s/ Xxxx Xxxxxx
--------------------------
Title: Secretary - Treasurer
-----------------------
WAXMAN INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxx
--------------------------
Title: VP and CFO
-----------------------
TWI, INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxx
--------------------------
Title: Secretary/Treasurer
-----------------------
[SIGNATURES CONTINUE ON NEXT PAGE]
-3-
10
[SIGNATURES CONTINUED FROM PRIOR PAGE]
ACCEPTED AND AGREED:
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxx Xxxxxxx
----------------------
Title: VP
-------------------
