EXHIBIT 4.11
SECOND AMENDMENT AGREEMENT
This Second Amendment Agreement is effective as of the 20th day of
August, 2003, 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 6.6 of the Credit Agreement is hereby deleted in its
entirety and is hereby replaced with the following:
"6.6 Fixed Charge Coverage Ratio. Maintain a Fixed Charge
Coverage Ratio of not less than 1.05 to 1.0 for the three (3) month period
ending June 30, 2003, the six (6) month period ending September 30, 2003, and
the nine (9) month period ending December 31, 2003, and thereafter, 1.05 to 1.0
for each rolling period of four (4) consecutive fiscal quarters, tested as of
each such quarter ended."
2. Concurrently with the execution of this Second Amendment
Agreement, Borrowers shall:
(a) cause the Guarantor to consent and agree to and
acknowledge the terms of this Second Amendment Agreement;
(b) deliver such other documents as may be reasonably
required by Agent in connection with this Second Amendment
Agreement; and
(c) pay all legal fees and expenses of Agent in
connection with this Second Amendment Agreement.
3. 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 Second Amendment Agreement; (b) the officers executing this Second
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 Second 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 Second Amendment Agreement
constitutes the valid and binding obligations of each Borrower in every respect,
enforceable in accordance with its terms.
4. 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 Second Amendment Agreement
shall be included in the definition of "Other Documents" as defined in the
Credit Agreement.
5. 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.
6. This Second 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.
7. 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.
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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
SECOND 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 SECOND 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 SECOND 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: 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 Second 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
