EX-4.11 2nd Amend. to Revolving Credit Agreement

EX-4.11 6 l02849aexv4w11.txt EX-4.11 2ND AMEND. TO REVOLVING CREDIT AGREEMENT 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. [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 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/ Mark Wester Name: Mark Wester Title: Vice President and Chief Financial Officer WAXMAN CONSUMER PRODUCTS GROUP INC. By: /s/ Mark Wester Name: Mark Wester Title: Treasurer and Assistant Secretary WAMI SALES, INC. By: /s/ Mark Wester Name: Mark Wester Title: Treasurer and Secretary WAXMAN USA INC. By: /s/ Mark Wester Name: Mark Wester Title: Vice President - Finance and Assistant Secretary PNC BANK, NATIONAL ASSOCIATION, as Lender and as Agent By: /s/ Eric Huff Name: Eric Huff 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/ Mark Wester Name: Mark Wester Title: Treasurer and Secretary