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EXHIBIT 4.42
AMENDMENT NO. 4 AND CONSENT TO LOAN AND SECURITY AGREEMENT
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As of July 10, 2000
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, as amended by Amendment No. 2 to Loan
and Security Agreement dated as of March 29, 2000, as amended by Amendment No. 3
and Waiver to Loan and Security Agreement dated as of May 1, 2000, as amended
hereby 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 (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").
Borrowers and Guarantors have requested that Lender consent to the
transfer, assignment and contribution by TWI to Waxman USA of all of TWI's
right, title and interest in and to all of the issued and outstanding shares of
capital stock of WAMI Sales (the "WAMI Sales Contribution"). Lender is willing
to consent to the WAMI Sales Contribution, 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. DEFINITIONS.
1.1 ADDITIONAL DEFINITIONS. As used herein, the term "Amendment No. 1
to Pledge Agreement" shall mean Amendment No. 1 to Pledge and Security
Agreement, dated as of the date hereof, by Waxman USA in favor of Lender, and
the term "TWI Pledge Agreement" shall mean the Pledge and Security Agreement,
dated as of June 17, 1999, made by TWI in favor of Lender.
1.2 AMENDMENTS TO DEFINITIONS. (a) Section 1 of the Loan Agreement is
hereby amended by adding the following definitions in their proper alphabetical
order:
"1.7A 'Borrowing Base' shall mean, as to each Borrower, an
amount equal to (a) eighty-five (85%) percent of the Net Amount of
Eligible Accounts of such Borrower, PLUS (b) sixty (60%) percent
of the Value of Eligible Inventory of such Borrower, PLUS (c)
solely with respect to the Borrowing Base of Waxman USA, the
Pledged Share Availability, MINUS (d) any Availability Reserves."
"1.46A 'Loan Limit' shall mean, as to each Borrower, the
amount equal to the Maximum Credit less the then outstanding
amount of Loans and Letter of Credit Accommodations to the other
Borrowers."
"1.73A 'Unused Availability' shall mean, as to any Borrower,
the amount calculated at any time, equal to: (a) the lesser of (i)
the amount of the Loans available to such Borrower as of such time
based on the applicable lending formulas multiplied by the Net
Amount of Eligible Accounts and the Value of Eligible Inventory of
such Borrower and subject to the sublimits and Availability
Reserves from time to time established by Lender hereunder and
(ii) the Loan Limit of such Borrower, MINUS (b) the sum of: (i)
the amount of all then outstanding and unpaid Obligations of such
Borrower (other than the Obligations arising pursuant to the
guarantee by such Borrower of the Obligations of the other
Borrowers), plus (ii) the aggregate amount of all trade payables
of such Borrower which are more than sixty (60) days past due as
of such time and other obligations of such Borrower which are past
due longer than is consistent with the current practices of such
Borrower as of the date hereof plus (iii) the amount of checks
issued by such Borrower to pay trade payables and other
obligations which are more than sixty (60) days past due, but not
yet sent (without duplication of amounts included in clause
(b)(ii) of this definition)."
(b) The definition of "Maximum Credit" in Section 1.48 of the Loan
Agreement is hereby amended by deleting "July 31, 2000" and replacing it with
"November 30, 2000".
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1.3 AMENDMENT TO SECTION 2.1(a). Section 2.1(a) of the Loan Agreement
is hereby amended by deleting such Section in its entirety and replacing it with
the following:
"(a) Subject to and upon the terms and conditions contained
herein, Lender agrees to make Loans to any Borrower from time to time
in amounts requested by such Borrower or on its behalf by Waxman
Industries up to the amount equal to the lesser of (i) the Loan Limit
of such Borrower and (ii) the Borrowing Base of such Borrower."
1.4 AMENDMENT TO SECTION 2.1(c). Section 2.1(c) of the Loan Agreement
is hereby amended by:
(a) inserting after "$1,500,000" the phrase "and (iv) the
aggregate outstanding amount of the Loans and Letter of Credit
Accommodations that are based on Eligible Inventory of all Borrowers at
any time shall not exceed $10,000,000"; and
(b) inserting ", any Loan Limit" after "the lending formulas."
1.5 AMENDMENT TO SECTION 2.1(d). Section 2.1(d) of the Loan Agreement
is hereby amended by deleting "Sections 2.1(a)(ii) hereof" and replacing it with
"Section 2.1(c)(iv) hereof".
1.6 AMENDMENT TO SECTION 2.2(c). Section 2.2(c) of the Loan Agreement
is hereby amended by deleting such Section in its entirety and replacing it with
the following:
"(c) No Letter of Credit Accommodations for the account of any
Borrower shall be available unless on the date of the proposed issuance
of any Letter of Credit Accommodations, the Loans available to such
Borrower (subject to the Loan Limit, the Maximum Credit and any
Availability Reserves) are equal to or greater than: (i) if the
proposed Letter of Credit Accommodation is for the purpose of
purchasing Eligible Inventory, the sum of (A) forty (40%) percent
multiplied by the Value of such Eligible Inventory, plus (B) freight,
taxes, duty and other amounts that Lender reasonably estimates must be
paid in connection with such Inventory upon arrival and for delivery to
one of such Borrower's locations for Eligible Inventory within the
United States of America and (ii) if the proposed Letter of Credit
Accommodation is for any other purpose, an amount equal to one hundred
(100%) percent of the face amount thereof and all other commitments and
obligations made or incurred by Lender with respect thereto. Effective
on the issuance of each Letter of Credit Accommodation, an Availability
Reserve shall be established in the applicable amount set forth in
Section 2.2(c)(i) or Section 2.2(c)(ii)."
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1.7 AMENDMENT TO SECTION 9.10(f). Section 9.10(f) of the Loan Agreement
is hereby amended by:
(i) deleting "and" at the end of clause (ii) thereof and
replacing it with a comma; and
(ii) adding the following immediately before the semicolon at the
end of such Section: ", (iv) as of the date of each such loan and after
giving effect thereto, the Borrower making such loan shall be solvent,
(v) as of the date of each such loan and after giving effect thereto,
no Event of Default or act, condition or event which with notice or
passage of time or both would constitute an Event of Default shall
exist or have occurred and (vi) as of the date of each such loan and
after giving effect thereto, the Unused Availability of the Borrower
making such loan shall not be less than $250,000 in the case of Waxman
Group, $100,000 in the case of WOC and $100,000 in the case of WAMI
Sales; PROVIDED, that notwithstanding anything to the contrary
contained in this Agreement, WAMI shall not make any loans pursuant to
this Section 9.10(f)."
1.8 INTERPRETATION. For purposes of this Amendment, unless otherwise
defined herein, all terms used herein, including, but not limited to, those
terms used and/or defined in the recitals above, shall have the respective
meanings assigned to such terms in the Loan Agreement.
2. CONSENTS. Notwithstanding anything to the contrary contained in
Section 9.7(b) or 9.12(a) of the Loan Agreement or in the TWI Pledge Agreement,
subject to the terms and conditions contained herein, the Lender hereby consents
to the WAMI Sales Contribution; PROVIDED that the lien and security interest of
Lender shall continue in all of the issued and outstanding shares of capital
stock of WAMI Sales and all proceeds thereof.
3. 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.
4. 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, being a continuing condition of the making or providing of any Loans
or Letter of Credit Accommodations by Lender to Borrowers:
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4.1 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.
4.2 Amendment No. 1 to Pledge Agreement has been duly authorized,
executed and delivered by Waxman USA, and the agreements and obligations of
Waxman USA contained in the Pledge and Security Agreement, dated as of June 17,
1999, by Waxman USA in favor of Lender as amended by Amendment No. 1 to Pledge
Agreement constitute legal, valid and binding obligations of Waxman USA
enforceable against Waxman USA in accordance with their respective terms.
4.3 Neither the execution and delivery of this Amendment or Amendment
No. 1 to Pledge Agreement, or any other agreements, documents or instruments in
connection herewith, 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 (including, but not limited
to, the Senior Note Indenture and the Senior Deferred Coupon Note Indenture) to
which any Borrower is a party or may be bound, or violates any provision of the
Certificates of Incorporation or By-Laws of Borrowers or Guarantors.
4.4 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, except for the Event of Default under Section
10.1(i) of the Loan Agreement arising solely as a result of the failure by
Waxman Industries to make a $5,915,808.75 interest payment under the Senior
Deferred Coupon Note Indenture that was due on June 1, 2000 (the "Existing
Default").
4.5 After giving effect to the WAMI Sales Contribution, Waxman USA will
be the legal and beneficial owner of 100 shares of common stock of WAMI Sales,
which will represent all of the issued and outstanding shares of WAMI Sales.
4.6 After giving effect to the WAMI Sales Contribution, Lender will
have a first priority, perfected lien on and security interest in all of the
issued and outstanding shares of capital stock of WAMI Sales.
5. 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:
5.1 the receipt by Lender of an original of this Amendment, duly
authorized, executed and delivered by Borrowers and Guarantors;
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5.2 the receipt by Lender of an original of Amendment No. 1 to Pledge
Agreement, duly authorized, executed and delivered by Waxman USA;
5.3 the receipt by Lender of original stock certificates representing
ownership by Waxman USA of 100 shares of Capital Stock of WAMI Sales, together
with stock powers with respect to such stock certificates executed in blank by
Waxman USA in respect thereof;
5.4 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;
5.5 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 therewith, such documents where requested by Lender or
its counsel to be certified by appropriate corporate officers or governmental
authorities; and
5.6 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, except
for the Existing Default.
6. GENERAL.
6.1 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.
6.2 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.
6.3 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).
6.4 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. This Amendment
shall be deemed to be one of the Financing Agreements.
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6.5 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
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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 and Treasurer
WAXMAN CONSUMER PRODUCTS
GROUP, INC.
By: /s/ Xxxx Xxxxxx
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Title: Treasurer
WAXMAN USA INC.
By: /s/ Xxxx Xxxxxx
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Title: Vice President-Finance
MEDAL OF PENNSYLVANIA, INC.,
formerly known as WOC Inc.
By: /s/ Xxxx Xxxxxx
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Title: Vice President-Finance
WAMI SALES, INC.
By: /s/ Xxxx Xxxxxx
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Title: Secretary and Treasurer
[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PRIOR PAGE]
WAXMAN INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxx
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Title: Vice President-Finance
TWI, INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxx
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Title: Secretary and Treasurer
ACCEPTED AND AGREED:
CONGRESS FINANCIAL CORPORATION
By: Xxxxxxxxx Xxxxxx
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Title: First VP
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