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EXHIBIT 4.36
FIRST SUPPLEMENTAL INDENTURE
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First Supplemental Indenture, dated as of December 1, 1999, to the
Indenture dated as of April 1, 1996 (the "Indenture"), between Waxman USA Inc.,
a Delaware corporation (the "Company"), and The United States Trust Company of
New York, as trustee (the "Trustee").
RECITAL
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The Indenture provides that the Company and the Trustee may, with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Company's outstanding 111/8% Senior Notes due 2001 (the
"Securities"), amend or supplement the Indenture or the Securities. The Company
has received signed consents of the Holders of at least a majority in aggregate
principal amount of the Securities approving the amendments to the Indenture and
the Securities contained in this First Supplemental Indenture.
NOW, THEREFORE, the parties agree as follows for their mutual benefit
and for the equal and ratable benefit of the Holders of the Securities:
1. Capitalized terms not defined herein shall have the meanings
given to them in the Indenture.
2. Section 1.01 of the Indenture is hereby amended by adding
thereto the following definition in its appropriate alphabetical order:
"Permitted Barnett Secured Indebtedness" means
Indebtedness of the Company or any of its Subsidiaries in an
aggregate principal amount not to exceed the greater of (i)
$10.0 million and (ii) the fair value of 1.0 million shares
(as such number may be proportionately adjusted for stock
splits, stock dividends, reclassifications and similar events)
of Barnett Common Stock that is secured by a Lien described
under clause (h) of the definition of Permitted Liens, less
the principal amount of Permitted Barnett Secured Indebtedness
permanently prepaid pursuant to Section 4.17 hereof."
3. The definition of Permitted Liens contained in Section 1.01
of the Indenture is hereby amended by deleting clause (h) thereof and
substituting the following new clause (h) in its place:
"Liens on up to the greater of (i) $10.0 million fair
value of Barnett Common Stock and (ii) 1.0 million shares of
Barnett Common Stock;"
4. This First Supplemental Indenture is an indenture to and in
implementation of the Indenture, and the Indenture and this First Supplemental
Indenture shall henceforth be read together.
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5. The Trustee accepts the trusts created by the Indenture, as
supplemented by this First Supplemental Indenture, and agrees to perform the
same upon the terms and conditions in the Indenture, as supplemented by this
First Supplemental Indenture.
6. The Indenture as amended and supplemented by this First
Supplemental Indenture is in all respects confirmed and preserved.
7. This First Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
8. The provisions of this First Supplemental Indenture will take
effect immediately upon its execution and delivery by the Trustee.
9. This First Supplemental Indenture shall be governed by the
internal laws of the State of New York.
10. If any provision of this First Supplemental Indenture shall
be declared by a court of competent jurisdiction to be unenforceable,
invalid or void, the same shall not impair any of the other provisions of this
First Supplemental Indenture, nor shall any party have liability to the other
parties as a result of such unenforceable, invalid or void provision.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
WAXMAN USA INC.
By: /s/ Mark Wester
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Name: Mark Wester
Title: Vice President-Finance
Attest: /s/ Mary Ellen Coble
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Name: Mary Ellen Coble
Address: 21507 Raymond St.
Maple Heights, OH 44137
THE UNITED STATES TRUST COMPANY OF
NEW YORK
as Trustee
By: /s/ Cynthia Chaney
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Name: Cynthia Chaney
Title: Assistant Vice President
