SEVENTH AMENDMENT AND WAIVER
AGREEMENT
THIS SEVENTH AMENDMENT AND WAIVER
AGREEMENT (this “
Agreement ”), is dated as of June 1, 2006, by and
between Q.E.P. CO., INC. , a Delaware corporation with its
chief executive office and principal place of business at 1001
Broken Sound Parkway NW, Suite A, Boca Raton, Florida 33487,
Q.E.P. – O’TOOL, INC. , a Nevada corporation
with its chief executive office and principal place of business at
1070 Mary Crest Road, Henderson, NV 89014, MARION TOOL
CORPORATION , an Indiana corporation with its chief executive
office and principal place of business at 1001 Broken Sound Parkway
NW, Suite A, Boca Raton, Florida 33487, ROBERTS CONSOLIDATED
INDUSTRIES, INC. , a Delaware corporation with its chief
executive office and principal place of business at 1001 Broken
Sound Parkway NW, Suite A, Boca Raton, Florida 33487, ROBERTS
JAPAN KK , an entity organized in Japan with its chief
executive office and principal place of business at 1001 Broken
Sound Parkway NW, Suite A, Boca Raton, Florida 33487, ROBERTS
HOLDING INTERNATIONAL, INC. , a Delaware corporation with its
chief executive office and principal place of business at 1001
Broken Sound Parkway NW, Suite A, Boca Raton, Florida 33487,
ROBERTS COMPANY CANADA LIMITED , an entity organized in
Ontario, Canada with its chief executive office and principal place
of business at 2070 Steeles Avenue, Bramalea, Ontario, Canada
L6T1A7, ROBERTS HOLLAND B.V. , an entity organized in The
Netherlands with its chief executive office and principal place of
business at 3360 AB Sliedrecht, P.O. Box 64, Parallelweg, The
Netherlands, ROBERTS U.K. LIMITED , an entity organized in
England with its chief executive office and principal place of
business at Nesfield House, Broughton Hall Business Park, Skipton,
North Yorks BD23 3AN, United Kingdom, ROBERTS GERMANY GmbH ,
an entity organized in Germany with its chief executive office and
principal place of business at 3360 AB Sliedrecht, Parallelweg, The
Netherlands, ROBERTS S.A.R.L. , an entity organized in
France with its chief executive office and principal place of
business at 25 rue de la Gare, 78370b Plaisir, France, Q.E.P.
STONE HOLDINGS, INC. , a Florida corporation with a place of
business at 1001 Broken Sound Parkway NW, Suite A, Boca Raton,
Florida 33487, Q.E.P. AUST. PTY. LIMITED , an entity
organized in Australia with a place of business at No.2 Dunlopillo
Drive, Dandenong, Victoria, Australia, Q.E.P. CHILE LIMITADA
, an entity organized in Chile with a place of business at San
Gerardo 731, Comuna De Recoleta, Santiago, Chile, Q.E.P. HOLDING
B.V. , an entity organized in the Netherlands with its chief
executive office and principal place of business at 3360 AB
Sliedrecht, Parallelweg, The Netherlands, Q.E.P. CO. NEW ZEALAND
LIMITED , an entity organized in New Zealand with a place of
business at Unit 1, 9 John Glenn Avenue, Albany, Auckland, New
Zealand, Q.E.P. ZOCALIS HOLDING L.L.C. , a Delaware limited
liability company with a place of business at 1001 Broken Sound
Parkway NW, Suite A, Boca Raton, Florida 33487, Q.E.P. ZOCALIS
S.R.L. , an entity organized in Argentina with its chief
executive office and principal place of business at 1607 Villa
Adelina, Buenos Aires, Argentina, BOIARDI PRODUCTS
CORPORATION , an Ohio corporation, with its chief executive
office and principal place of business at 453 Main Street, Little
Falls, New Jersey 07424, Q.E.P. CO. U.K. LIMITED , an entity
organized in England with its chief executive office and principal
place of business at Everest Road, Lytham St Annes, Lancashire FY8
3AZ, VITREX LIMITED , an entity organized in England with
its chief executive office and principal place of business at
Everest Road, Lytham St Annes, Lancashire FY8 3AZ, ROBERTS
CAPITOL, INC. , a Florida corporation with a chief executive
office and principal place of business at 1001 Broken Sound Parkway
NW, Suite A, Boca Raton, Florida 33487,
ROBERTS MEXICANA, S.A. DE C.V.
, an entity organized in Mexico with
its chief executive office and principal place of business at
Poniente 152, numero 935, Colonia Industrial Vallejo, C.P. 02300,
Mexico, D.F., and P.R.C.I. SA , an entity organized in
France with its chief executive office and principal place of
business at 111 Rue du Masdeporaly, Zone Industrielle 34000,
Montpellier, France (all of the foregoing are hereinafter
collectively referred to as, the “ Borrower ”),
BANK OF AMERICA, N.A., successor-in-interest to FLEET CAPITAL
CORPORATION (“BOA”) and HSBC BANK USA, NATIONAL
ASSOCIATION, successor-by-merger to HSBC BANK USA
(“HSBC” and together with BOA, the
“Lenders” and each individually a “
Lender ” ) , and BANK OF AMERICA, N.A.,
successor-in-interest to FLEET CAPITAL CORPORATION , with an
office at One Landmark Square, Stamford, Connecticut 06901, as
agent for the Lenders, (hereinafter referred to as the
“Agent” ).
PREAMBLE
WHEREAS , pursuant to that certain Second Amended and
Restated Loan Agreement dated as of November 14, 2002 by and
among the Borrower, the Lenders and the Agent (as amended and in
effect from time to time, the “ Loan Agreement
”), the Lenders made, or agreed to make in the future,
certain Loans to the Borrower;
WHEREAS , the Borrower has requested Lenders to
(i) amend the Loan Agreement in order to, among other things,
amend certain financial covenants and (ii) waive certain
requirements therein; and
WHEREAS , Lenders are willing to amend the Loan
Agreement and waive such requirements and waive such requirements
subject to and in reliance upon the representations, warranties,
acknowledgments, covenants and agreements of Borrower contained
herein.
AGREEMENT
NOW, THEREFORE
, in consideration of the mutual
promises and covenants contained herein and acknowledging that
Lenders are relying upon the representations, warranties,
acknowledgments, covenants and agreements of Borrower contained
herein, Borrower and Lenders agree as follows:
I. Acknowledgments and
Affirmations .
A. Borrower and Lenders acknowledge
and agree that capitalized terms used herein and without definition
shall have the meanings assigned to them in the Loan
Agreement.
B. Borrower acknowledges and affirms
that:
1. As of May 1, 2006, Borrower
is legally and validly indebted to Lenders under the Loan Agreement
in the principal amount (including the face amount of outstanding
Letters of Credit) of $25,209,673.76 with respect to the Revolving
Loan, $3,833,333.29 with respect to the Term Loans, $0 with respect
to the BV Loans and $1,914,146.94 with respect to the Mortgage
Loan,
plus interest, fees and charges accrued and
accruing thereon and thereunder, and there is no defense, offset or
counterclaim with respect to any such indebtedness or independent
claim or action against Lenders.
2. All indebtedness of Borrower to
Lenders whenever and however arising, is secured by a duly
perfected, first priority security interest in the Collateral (or,
in the case of QEP UK, Vitrex, Roberts Mexicana, S.A. de C.V., and
P.R.C.I. SA a second priority security interest in the Collateral
which is and shall be junior only to the liens described in
subsection III (ii) of the Fourth Amendment and Waiver
Agreement dated as of March 31, 2005, by and between the
Borrowers, the Lenders and the Agent).
C. Borrower represents and warrants
that:
1. The resolutions previously
adopted by the Board of Directors of each Borrower with respect to
the Loan Agreement and provided to Lenders have not in any way been
rescinded or modified and have been in full force and effect since
their adoption to and including the date hereof and are now in full
force and effect, except to the extent that they have been modified
or supplemented to authorize this Agreement and the documents and
transactions described herein.
2. Each Borrower has the corporate
power and authority to enter into this Agreement and the
transactions contemplated herein, and each Borrower has taken all
necessary corporate action to authorize this Agreement and the
transactions contemplated herein.
3. Except as amended by this
Agreement, all representations, warranties and covenants contained
in the Loan Agreement, and in the schedules and exhibits attached
thereto, are true and correct on and as of the date hereof, are
incorporated herein by reference and, with respect to each Borrower
organized under the laws of any jurisdiction within the United
States, Canada, the Netherlands, Australia or the United Kingdom,
are hereby remade, and, with respect to each other Borrower, are
hereby remade to the best of their knowledge.
4. Except for those requirements
which are being waived pursuant to Section III hereof, no Borrower
is currently in default under the Loan Agreement, and no condition
exists or has occurred which would constitute a default thereunder
but for the giving of notice or passage of time, or
both.
D. The consummation of the
transactions contemplated herein (a) is not prevented or
limited by, nor does it conflict with or result in a breach of
t
