Exhibit 4.11
FIRST AMENDMENT AGREEMENT
This First Amendment Agreement is effective as of the 6th day of
September, 2002, by and among Waxman Industries, Inc., a corporation organized
under the laws of the State of Delaware, Waxman Consumer Products Group Inc., a
corporation organized under the laws of the State of Delaware, Waxman USA Inc.,
a corporation organized under the laws of the State of Delaware, and WAMI Sales,
Inc., a corporation organized under the laws of the State of Delaware (each a
"Borrower" and collectively, "Borrowers"), the financial institutions which are
now or which hereafter become a party hereto (each a "Lender" and collectively,
the "Lenders") and PNC BANK, NATIONAL ASSOCIATION ("PNC"), as agent for the
Lenders (PNC, in such capacity, the "Agent").
WHEREAS, Borrowers, Agent and the Lenders are parties to a certain
Revolving Credit, Term Loan and Security Agreement dated as of February 13, 2002
(the "Credit Agreement");
WHEREAS, Borrowers, Agent and the Lenders desire to amend the Credit
Agreement as set forth herein; and
WHEREAS, each term used herein shall be defined in accordance with
the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other valuable consideration, Borrowers,
Agent and the Lenders hereby agree as follows:
1. Section 7.6 of the Credit Agreement is hereby deleted in its
entirety and is hereby replaced with the following:
"CAPITAL EXPENDITURES. Contract for, purchase or make any
expenditure or commitments for fixed or capital assets (including capitalized
leases) in (i) the fiscal year ending June 30, 2002, in an aggregate amount for
all Borrowers in excess of $ 1,700,000 and, no more than $800,000 may be
expended with respect to Foreign Subsidiaries; (ii) the fiscal year ending June
30, 2003, in an aggregate amount for all Borrowers in excess of $1,700,000 and,
no more than $1,050,000 may be expended with respect to Foreign Subsidiaries;
(iii) the fiscal year ending June 30, 2004, in an aggregate amount for all
Borrowers in excess of $ 1,800,000 and, no more than $1,150,000 may be expended
with respect to Foreign Subsidiaries; and (iv) the fiscal year ending June 30,
2005, in an aggregate amount for all Borrowers in excess of $1,850,000 and, no
more than $1,l50,000 may be expended with respect to Foreign Subsidiaries. Any
insurance proceeds used by Borrowers to repair, replace or restore insured
property shall be in addition to the amounts set forth herein."
2. Section 7.5(b) of the Credit Agreement is hereby deleted in its
entirety and is hereby replaced with the following:
"(b) loans to the individuals and entities set forth on SCHEDULE
7.5, which shall not exceed the aggregate amount of $700,000 at any time;
provided, however, that (i) such amount
shall be reduced by any reduction in the amount of the Handl-it Inc. note,
whether by collection or write-off, and (ii) excluding any loans to Handl-it
Inc., the loans to the individuals and entities set forth on SCHEDULE 7.5 shall
not exceed the aggregate amount of $500,000 at any time, and"
3. SCHEDULE 7.5 of the Credit Agreement is hereby deleted in its
entirety and is hereby replaced with the following:
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DESCRIPTION AMOUNT
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Xxxxxx Xxxxxx --
Receivable $60,000
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Xxxxxx Xxxxxx --
Receivable $75,000
-------------------------------------------------------
Xxxxxx Xxxxxx $60,000
-------------------------------------------------------
Xxxxx Xxxxxx - Receivable $28,925
-------------------------------------------------------
Xxxxxxxx Xxxxxxxx $34,982
-------------------------------------------------------
Waxman Development $84,384
-------------------------------------------------------
Aurora Investments $70,629
-------------------------------------------------------
Handl-it Inc. $259,299
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4. Concurrently with the execution of this First Amendment Agreement,
Borrowers shall:
(a) cause the Guarantor to consent and agree to and
acknowledge the terms of this First Amendment Agreement;
(b) deliver such other documents as may be reasonably
required by Agent in connection with this First Amendment
Agreement; and
(c) pay all legal fees and expenses of Agent in connection
with this First Amendment Agreement.
5. Borrowers hereby represent and warrant to Agent and the Lenders that
(a) each Borrower has the legal power and authority to execute and deliver this
First Amendment Agreement; (b) the officers executing this First Amendment
Agreement have been duly authorized to execute and deliver the same and bind
such Borrower with respect to the provisions hereof; (c) the execution and
delivery hereof by Borrowers and the performance and observance by Borrowers of
the provisions hereof do not violate or conflict with the organizational
agreements of any Borrower or any law applicable to any Borrower or result in a
breach of any provision of or constitute a default under any other agreement,
instrument or document binding upon or enforceable against any Borrower; (d) no
Default or Event of Default exists under the Credit Agreement, nor will any
occur immediately after the execution and delivery of this First Amendment
Agreement or by the performance or observance of any provision hereof; (e) no
Borrower nor any Guarantor is aware of any claim or offset against, or defense
or counterclaim to, any of Borrowers' or the Guarantor's Obligations under the
Credit Agreement or any Other
Documents; and (f) this First Amendment Agreement constitutes the valid and
binding obligations of each Borrower in every respect, enforceable in accordance
with its terms.
6. Each reference that is made in the Credit Agreement or any other
writing to the Credit Agreement shall hereafter be construed as a reference to
the Credit Agreement as amended hereby. Except as herein otherwise specifically
provided, all provisions of the Credit Agreement shall remain in full force and
effect and be unaffected hereby. This First Amendment Agreement shall be
included in the definifion of "Other Documents" as defined in the Credit
Agreement.
7. Each Borrower and the Guarantor, by signing below, hereby waives
and releases Agent and each of the Lenders and their respective directors,
officers, employees, attorneys, affiliates and subsidiaries from any and all
claims, offsets, defenses and counterclaims of which any Borrower and the
Guarantor is aware; such waiver and release being with full knowledge and
understanding of the circumstances and effect thereof and after having
consulted legal counsel with respect thereto.
8. This First Amendment Agreement may be executed in any number of
counterparts and by facsimile signature, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same agreement.
9. The rights and obligations of all parties hereto shall be governed
by the laws of the State of Ohio, without regard to principles of conflicts of
laws.
[Remainder of Page Intentionally Left Blank]
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER
THIS FIRST AMENDMENT AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO THIS FIRST AMENDMENT AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND
EACH PARTY HEREBY CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS FIRST AMENDMENT AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENTS OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Each of the parties has signed this Agreement as of the day and year
first above written.
WAXMAN INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
WAXMAN CONSUMER PRODUCTS GROUP INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer and Assistant Secretary
WAMI SALES, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer and Secretary
WAXMAN USA INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President -- Finance and Assistant
Secretary
PNC BANK, NATIONAL ASSOCIATION, as
Lender and as Agent
By: /s/ Xxxx Xxxx
-------------------------------------
Name: Xxxx Xxxx
Title: Assistant Vice President
GUARANTOR ACKNOWLEDGMENT
------------------------
The undersigned consents and agrees to and acknowledges the terms of
the foregoing First Amendment Agreement. The undersigned further agrees that its
obligations under the Guaranty Agreement, dated February 13, 2002, by the
Guarantor and the Security Agreement, dated February 13, 2002, between
Guarantor and PNC as agent for the Lenders shall remain in full force and effect
and be unaffected hereby.
TWI, INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer and Secretary
