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Exhibit 4.41
AMENDMENT NO. 3 AND WAIVER TO LOAN AND SECURITY AGREEMENT
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As of May 1, 2000
Congress Financial Corporation
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Ladies and Gentlemen:
Congress Financial Corporation ("Lender"), Waxman Consumer Products
Group Inc., a Delaware corporation ("Waxman Group"), WOC Inc., a Delaware
corporation ("WOC"), Western American Manufacturing, Inc., a Delaware
corporation ("WAMI"), WAMI Sales, Inc., a Delaware corporation ("WAMI Sales",
and together with Waxman Group, WOC 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 hereby and as the same may hereafter be further
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 (a) waive the Event
of Default arising from the failure of Waxman Industries and its Subsidiaries to
comply with Section 9.15 of the Loan Agreement prior the date hereof and (b)
amend the Adjusted Net Worth covenant set forth in the Loan Agreement. Lender is
willing to agree to such requests, 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 acknowledged, the parties hereto agree as
follows:
1. AMENDMENTS.
1.1 AMENDMENT TO DEFINITION OF ADJUSTED NET WORTH. Section 1.3 of the
Loan Agreement is amended by deleting the parenthetical phrase "(including all
prepaid assets)" and replacing it with "(including all prepaid assets but
excluding all intangible assets)".
1.2 AMENDMENT TO SECTION 9.15. Section 9.15 of the Loan Agreement is
amended and restated as follows:
"9.15 ADJUSTED NET WORTH. Waxman Industries and its Subsidiaries
shall have Adjusted Net Worth of not less than $(88,000,000) at all times."
1.3 INTERPRETATION. For purposes of this Amendment, unless otherwise
defined herein, all terms used herein, including, but not limited to, those
terms used in the recitals above, shall have the respective meanings assigned to
such terms in the Loan Agreement.
2. WAIVER. Lender hereby waives the Event of Default arising from the
failure of Waxman Industries and its Subsidiaries to comply with Section 9.15 of
the Loan Agreement at any time prior to the date hereof.
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 in the amount of $25,000, 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
Guarantor, jointly and severally, 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:
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 and in the Loan Agreement as amended hereby
constitute legal, valid and binding obligations of Borrowers and Guarantors
enforceable against Borrowers and Guarantors in accordance with their respective
terms.
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4.2 Neither the execution and delivery of this Amendment, 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 Authority
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
or Guarantor is a party or may be bound, or violates any provision of the
Certificate of Incorporation or By-Laws of any Borrower or Guarantor.
4.3 After giving effect to this Amendment, 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.
4.4 Each Borrower and each Guarantor is and, after giving effect to the
transactions contemplated hereby, will be solvent.
5. CONDITIONS PRECEDENT. The amendments and waiver 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; and
5.2 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.
6. GENERAL.
6.1 EFFECT OF THIS AMENDMENT. Except as modified and waived 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.
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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. 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.
6.5 COUNTERPARTS, ETC. 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 hereof 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/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Secretary and Treasurer
WAXMAN CONSUMER PRODUCTS
GROUP, INC.
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Treasurer
WAXMAN USA INC.
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President-Finance
[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
WOC INC.
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Secretary and Treasurer
WAMI SALES, INC.
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Secretary and Treasurer
WAXMAN INDUSTRIES, INC.
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President-Finance and
Chief Financial Officer
TWI, INTERNATIONAL, INC.
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Secretary and Treasurer
ACCEPTED AND AGREED:
CONGRESS FINANCIAL CORPORATION
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: VP
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