Exhibit 10.25
FIFTH AMENDMENT AND WAIVER
AGREEMENT
THIS FIFTH AMENDMENT AND WAIVER
AGREEMENT (this “
Agreement ”), is dated as of June 14, 2005, by and
between Q.E.P. CO., INC. , a Delaware corporation with its
chief executive office and principal place of business at 1081
Holland Drive, 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 1081
Holland Drive, Boca Raton, Florida 33487, ROBERTS CONSOLIDATED
INDUSTRIES, INC. , a Delaware corporation with its chief
executive office and principal place of business at 1081 Holland
Drive, Boca Raton, Florida 33487, ROBERTS JAPAN KK , an
entity organized in Japan with its chief executive office and
principal place of business at 1081 Holland Drive, Boca Raton,
Florida 33487, ROBERTS HOLDING INTERNATIONAL, INC. , a
Delaware corporation with its chief executive office and principal
place of business at 1081 Holland Drive, 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 Unit 10, Branxholme Industrial Estate, Bailiff Bridge,
Brighouse, West Yorkshire, England, HD6 4EA, ROBERTS GERMANY
GmbH , an entity organized in Germany with its chief executive
office and principal place of business at Dreieichstrasse 10, 64546
Morfelden-Waldorf, Germany, 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 1081 Holland Drive, Boca Raton, Florida 33487,
Q.E.P. AUST. PTY. LIMITED , an entity organized in Australia
with a place of business at 32-34 Hydrive Close, Victoria,
Australia 3175, Q.E.P. CHILE LIMITADA , an entity organized
in Chile with a place of business at Av. Recoleta 4464, Huechuraba,
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 67 Dalgety
Drive, Manukau City, Auckland, New Zealand, Q.E.P. ZOCALIS
HOLDING L.L.C. , a Delaware limited liability company with a
place of business at 1081 Holland Drive, 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 Aries, 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 Gverest Road, Lytham St Anncs, Lancashire FY8
3AZ, VITREX LIMITED , an entity organized in England with
its chief executive office and principal place of business at
Gverest Road, Lytham St Anncs, Lancashire FY8 3AZ, ROBERTS
CAPITOL, INC. , a Florida corporation with a chief executive
office and
principal place of business at 1081 Holland
Drive, 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 ”), FLEET CAPITAL CORPORATION
(“FCC”) and HSBC BANK USA, NATIONAL ASSOCIATION,
successor-by-merger to HSBC BANK USA (“HSBC” and
together with FCC, the “Lenders” and each
individually a “ Lender ” ) , and
FLEET CAPITAL CORPORATION , a Rhode Island 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 amend
the Loan Agreement in order to, among other things, amend the
leverage and fixed charge coverage covenants; and
WHEREAS , Lenders are willing to amend the Loan
Agreement 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 March 1, 2005, 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 $ 22,243,181.14 with respect to the Revolving
Loan, $ 2,866,661.00 with respect to the Term Loans, $ 0.00 with
respect to the BV Loans and
2
CAD $ 2,322,024.02 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
th
