Exhibit 99.1
Execution Version
SEVENTH AMENDMENT
TO, AND WAIVER UNDER, AMENDED AND RESTATED CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO, AND WAIVER UNDER, AMENDED AND RESTATED
CREDIT AGREEMENT (this "Seventh Amendment") is made and entered into as of
February 8, 2006, by and among the financial institutions identified on the
signature pages hereof (such financial institutions, together with their
respective successors and assigns, are referred to hereinafter each individually
as a "Lender" and collectively as the "Lenders"), XXXXX FARGO FOOTHILL, INC., a
California corporation, as administrative agent and collateral agent for the
Lenders (in such capacities, together with any successor administrative agent
and collateral agent, the "Agent"), SILVER POINT FINANCE, LLC, as the co-agent,
syndication agent, documentation agent (in such capacities, together with any
successor co-agent, syndication agent, and documentation agent, the "Co-Agent"),
arranger and book runner, SALTON, INC., a Delaware corporation (the "Parent"),
each of the Parent's Subsidiaries identified on the signature pages hereof as
Borrowers (collectively with the Parent, the "Borrowers") and each of the
Parent's Subsidiaries identified on the signature pages hereof as Guarantors
(collectively, the "Guarantors" and, together with the Borrowers, the "Borrower
Parties").
WITNESSETH:
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WHEREAS, the Lenders, the Agent, the Co-Agent and the Borrower Parties
are parties to that certain Amended and Restated Credit Agreement, dated as of
May 9, 2003 and amended and restated as of June 15, 2004 (as amended as of
August 30, 2004, as of May 11, 2005, as of July 8, 2005, as of September 22,
2005, as of October 7, 2005, and as of November 9, 2005, and as it may be
further amended, modified, supplemented or amended and restated from time to
time, the "Credit Agreement");
WHEREAS, Section 7.24 of the Credit Agreement required that the
Borrowers not fail to maintain or achieve a Consolidated Fixed Charge Coverage
Ratio for the 12-month period ending November 30, 2005 of at least 0.09:1.00
(the "November 2005 CFCC Threshold");
WHEREAS, the Borrowers' actual Consolidated Fixed Charge Coverage Ratio
for the 12-month period ending November 30, 2005 was less than the November 2005
CFCC Threshold (the "Section 7.24 November Default");
WHEREAS, the Borrowers have requested, and the Agent, the Co-Agent and
the Lenders have agreed, to waive the Section 7.24 November Default subject to
the terms and conditions set forth herein;
WHEREAS, pursuant to Section 7 of the Sixth Amendment (as extended by that
certain Waiver and Consent under Amended and Restated Credit Agreement dated as
of December 20, 2005), Borrowers agreed to deliver to the Co-Agent, on or prior
to January 15, 2006, a fully executed landlord waiver, in form and substance
reasonably satisfactory to the Agent and the Co-
Agent, with respect to the property located at 0000 Xxxx Xxxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000 (the "Required Landlord Waiver");
WHEREAS, the Borrowers have failed to deliver the Required Landlord
Waiver (the "Landlord Waiver Default");
WHEREAS, the Borrowers have requested, and the Agent, the Co-Agent and
the Lenders have agreed, to waive the Landlord Waiver Default subject to the
terms and conditions set forth herein;
WHEREAS, Section 3 of the Sixth Amendment provides that the waivers
under the Security Agreement set forth therein (the "Section 3 Security
Agreement Waivers") shall be rescinded and no longer effective if the Required
Landlord Waiver is not obtained in compliance with Section 7 of the Sixth
Amendment;
WHEREAS, the Borrowers have requested, and the Agent, the Co-Agent and
the Lenders have agreed, to extend the Section 3 Security Agreement Waivers
subject to the terms and conditions set forth herein;
WHEREAS, the Borrowers have requested that the Lenders terminate and
release (a) the pledge by Salton UK of its interest in Salton Holdings Limited
(the "Salton UK-Salton Holdings Limited Pledge") pursuant to that certain Pledge
Agreement dated as of June 28, 2005 among Salton UK and the Agent (the "Salton
UK-Salton Holdings Limited Pledge Agreement"), (b) the pledge by Salton Nominees
Limited of its interest in Salton Holdings Limited (the "Salton Nominees-Salton
Holdings Limited Pledge") pursuant to that certain Pledge Agreement dated as of
June 28, 2005 among Salton Nominees Limited and the Agent (the "Salton
Nominees-Salton Holdings Limited Pledge Agreement"), (c) the pledge by Salton
S.A.R.L., Salton International C.V., Salton, Inc., Salton Holdings, Inc. and
Home Creations Direct, Ltd. of their interest in Salton Hong Kong Limited (the
"Salton Hong Kong Limited Pledge") pursuant to that certain Deed of Security and
Pledge dated as of July 25, 2005 among Salton S.A.R.L., Salton International
C.V., Salton, Inc., Salton Holdings, Inc., Home Creations Direct, Ltd. and the
Agent (the "Salton Hong Kong Limited Pledge Agreement"), and (d) the pledge by
Salton International C.V., Salton, Inc., Salton Holdings, Inc. and Home
Creations Direct, Ltd. of their interest in Salton (Aust) Pty Ltd. (the "Salton
(Aust) Pty Ltd. Pledge", and together with the Salton UK-Salton Holdings Limited
Pledge, the Salton Nominees-Salton Holdings Limited Pledge, and the Salton Hong
Limited Pledge, the "Applicable Foreign Pledges") pursuant to that certain Deed
of Security and Pledge dated as of July 28, 2005 among Salton International
C.V., Salton, Inc., Salton Holdings, Inc., Home Creations Direct, Ltd. and the
Agent (the "Salton (Aust) Pty Ltd. Pledge Agreement", and together with the
Salton UK-Salton Holdings Limited Pledge Agreement, the Salton Nominees-Salton
Holdings Limited Pledge Agreement, and the Salton Hong Limited Pledge Agreement,
the "Applicable Foreign Pledge Agreements");
WHEREAS, the Agent, the Co-Agent and the Lenders have agreed to
terminate and release the Applicable Foreign Pledges subject to the terms and
conditions set forth herein; and
WHEREAS, the Borrower Parties, the Lenders, the Agent and the Co-Agent
wish to amend the Credit Agreement as herein provided;
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NOW, THEREFORE, in consideration of the agreements and provisions
herein contained, the parties hereto do hereby agree as follows:
SECTION 1. DEFINITIONS. Any capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.
SECTION 2. WAIVERS UNDER CREDIT AGREEMENT.
2.01 WAIVER AND AGREEMENT IN CONNECTION WITH LANDLORD DEFAULT. Subject
to the satisfaction of the terms and conditions set forth herein, the Agent, the
Co-Agent and the Required Lenders hereby (a) waive the Landlord Default solely
with respect to the failure to deliver the Required Landlord Waiver in
accordance with Section 7 of the Sixth Amendment (as extended by that certain
Waiver and Consent under Amended and Restated Credit Agreement dated as of
December 20, 2005) and (b) agree that, notwithstanding Section 3 of the Sixth
Amendment, the Section 3 Security Agreement Waivers shall not be rescinded and
shall remain effective; provided, that the foregoing waiver and agreement shall
be rescinded and no longer effective if Administrative Borrower fails to deliver
to the Lenders a fully executed landlord waiver, in form and substance
reasonably satisfactory to the Agent and the Co-Agent, with respect to the
property located at 0000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, on
or prior to March 15, 2006.
2.02 WAIVER IN CONNECTION WITH FINANCIAL COVENANT DEFAULT. Subject to
the satisfaction of the terms and conditions set forth herein, the Agent, the
Co-Agent and the Required Lenders hereby agree to waive the Section 7.24
November Default solely with respect to the 12-month period ending November 30,
2005.
SECTION 3. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is
hereby amended, effective as of the date this Seventh Amendment becomes
effective in accordance with Section 7 hereof (except with respect to Section
3.05(b) of this Seventh Amendment, which shall become effective on March 1,
2006), as follows:
3.01 AMENDMENT TO SECTION 3.1(C) OF THE CREDIT AGREEMENT. Clause (iv)
of Section 3.1(c) of the Credit Agreement is hereby amended by deleting it in
its entirety.
3.02 AMENDMENTS TO SECTION 7.24 OF THE CREDIT AGREEMENT. Section 7.24
of the Credit Agreement is hereby amended by deleting it in its entirety and
inserting the following in lieu thereof:
"7.24 Fixed Charge Coverage Ratio. No Borrower Party shall permit the
Consolidated Fixed Charge Coverage Ratio, calculated on a consolidated
basis with respect to the Parent and its Subsidiaries, as of the end of
each fiscal month for the twelve-month period then ending, to be less
than the amount set forth below for the applicable period set forth
below:
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Applicable Ratio Applicable Period
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(0.16) to 1.00 For the 12-month period ending December 31, 2005
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(0.13) to 1.00 For the 12-month period ending January 31, 2006
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(0.09) to 1.00 For the 12-month period ending February 28, 2006
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0.04 to 1.00 For the 12-month period ending March 31, 2006
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0.05 to 1.00 For the 12-month period ending April 30, 2006
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0.00 to 1.00 For the 12-month period ending May 31, 2006
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0.13 to 1.00 For the 12-month period ending June 30, 2006
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0.14 to 1.00 For the 12-month period ending July 31, 2006
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0.22 to 1.00 For the 12-month period ending August 31, 2006
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0.37 to 1.00 For the 12-month period ending September 30, 2006
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0.38 to 1.00 For the 12-month period ending October 31, 2006
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0.29 to 1.00 For the 12-month period ending November 30, 2006
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0.55 to 1.00 For the 12-month period ending December 31, 2006
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0.63 to 1.00 For the 12-month period ending January 31, 2007
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0.68 to 1.00 For the 12-month period ending February 28, 2007
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0.69 to 1.00 For the 12-month period ending March 31, 2007
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0.76 to 1.00 For the 12-month period ending April 30, 2007
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0.84 to 1.00 For the 12-month period ending May 31, 2007
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0.87 to 1.00 For the 12-month period ending June 30, 2007
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A ratio determined by Co-Agent based on the For each 12-month period ending on
projections delivered pursuant to Section 5.2(g) the last day of each month thereafter
satisfactory to Co-Agent, unless otherwise agreed
to in writing by Co-Agent and the Borrowers
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3.03 SECTION 13.8. Section 13.8 of the Credit Agreement is hereby
amended by deleting it in its entirety and inserting the following in lieu
thereof:
"13.8 Notices. Except as otherwise provided herein, all
notices, demands and requests that any party is required or elects to give to
any other shall be in writing, or by a telecommunications device capable of
creating a written record, and any such notice shall become effective (a) upon
personal delivery thereof, including, but not limited to, delivery by overnight
mail and courier service, (b) four (4) days after it shall have been mailed by
United States mail, first class, certified or registered, with postage prepaid,
or (c) in the case of notice by such a telecommunications device, when properly
transmitted and confirmed, in each case addressed to the party to be notified as
follows:
If to the Agent:
Xxxxx Fargo Foothill, Inc.
0000 Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Business Finance Division Manager
Telecopy No.: (000) 000-0000
Email: xxxxxxx@xxxxxxxxxx.xxx
with copies to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Email: xxxxxxxx.xxxxxxx@xxx.xxx
If to the Borrower Parties, or any of them:
Salton, Inc.
0000 Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxx
Telecopy No.: (000) 000-0000
Email: xxxx@xxxxxxxxx.xxx
with copies to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Email: xxxxxxxxxxx@xxxxxxxxxxxx.xxx
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If to the Co-Agent:
Silver Point Finance, LLC
Two Greenwich Plaza, 1st Floor
Greenwich, CT 06830-6353600
Attn: Xxxxx Xxxxxx
Telecopy No.: (000) 000-0000
Email: xxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
with copies to:
Xxxxxxx XxXxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Email: xxxx.xxxxxxx@xxxxxxx.xxx
If to a Lender, to such Lender at such address as shall be set forth on
its signature page hereof,
in each case above, or to such other address as each party may
designate for itself by like notice. Failure or delay in delivering copies of
any notice, demand, request, consent, approval, declaration or other
communication to the persons designated above to receive copies shall not
adversely affect the effectiveness of such notice, demand, request, consent,
approval, declaration or other communication."
3.04 SCHEDULE 7.22. Schedule 7.22 of the Credit Agreement is hereby
amended by deleting it in its entirety and inserting the Schedule 7.22 attached
hereto in lieu thereof.
3.05 AMENDMENTS TO ANNEX A: CREDIT AGREEMENT DEFINITIONS.
(a) The definition of "Applicable Margin" is hereby amended by
deleting it in its entirety and inserting the following in lieu thereof:
""Applicable Margin" means (a) with respect to Base Rate Loans
and all other Obligations (other than LIBOR Rate Loans), 4.00%, and (b) with
respect to LIBOR Rate Loans, 6.00%; provided, that if Agent, Co-Agent, the
Lenders and the Borrower Parties agree to amend the definition of Borrowing Base
to eliminate clause (a)(D) thereof, then, effective as of such amendment,
"Applicable Margin" shall mean (a) with respect to Base Rate Loans and all other
Obligations, 3.00%, and (b) with respect to LIBOR Rate Loans, 5.00%."
(b) Clause (a)(D) of the definition of "Borrowing Base" is
hereby amended by deleting it in its entirety and inserting the following in
lieu thereof:
""(D) the lesser of
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(i) the sum of
(x) ten percent (10%) of the Net Amount of Eligible
Accounts, plus
(y) the sum of (I) twenty-four percent (24%) of the value
of the Eligible Landed Inventory, plus (II) twenty-nine percent (29%) of the
book value of Eligible In-Transit Inventory valued at the lower of cost
(determined on a first-in, first-out basis) or market; and
(ii) $16,200,000"; and
(c) The definition of "EBITDA" is hereby amended by deleting it in its
entirety and inserting the following in lieu thereof:
""EBITDA" means, with respect to any fiscal period of the
Borrowers, US Adjusted Net Earnings from Operations, plus, to the extent
deducted in the determination of US Adjusted Net Earnings from Operations for
that fiscal period, (a) interest expenses, (b) Federal, state, local and foreign
income taxes, (c) depreciation and amortization (including, without limitation,
amortization of restricted stock, stock appreciation rights and similar equity
instruments), (d) impairment losses incurred in connection with a restructuring
of the U.S. operations in an aggregate amount not to exceed the applicable
amount set forth in Schedule E-4 for each applicable period, and (e) the
aggregate amount of losses resulting from the sale of slow moving or excess
Inventory of Borrower Parties during the period from February 6, 2006 through
and including September 30, 2006 in an aggregate amount not to exceed
$5,000,000; provided, that no amount shall be added back under this clause (e)
unless and until the Agent and the Co-Agent shall have received satisfactory
documentation (including, without limitation, a certificate signed by an officer
of the Parent) evidencing the loss resulting from any such sale and the
corresponding deduction in the determination of US Adjusted Net Earnings from
Operations; provided, further, that no amount shall be added back under this
clause (e) from and after the date that the Borrower Parties shall have received
an aggregate amount of $5,000,000 or more in Net Cash Proceeds from (x) the sale
or other disposition of assets other than Inventory and/or (y) the issuance of
any Debt or shares of Stock."
SECTION 4. TERMINATION OF APPLICABLE FOREIGN PLEDGES. The Agent, the
Co-Agent and the Lenders hereby terminate each of the Applicable Foreign Pledges
and shall promptly release and return any remaining certificated Pledged
Interests (as defined in the respective Applicable Foreign Pledge Agreements),
if any, and all rights received by Agent as a result of its possessory interest
in such Pledged Interests to the appropriate Pledgors and shall deliver such
termination statements and other release documents as may be requested by the
Pledgor to evidence the termination of the Agent's Liens in such Pledged
Interests thereunder, in each case without recourse and without representation
or warranty of any kind and at the sole cost and expense of the Pledgors. In
addition, the Agent, the Co-Agent and the Lenders hereby waive any failure on
the part of the applicable Loan Parties to have the Applicable Foreign Pledges
in effect and any failure of the applicable Loan Parties to comply with the
Applicable Foreign Pledge Agreements.
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SECTION 5. RESERVES ESTABLISHED IN CONNECTION WITH FOURTH AMENDMENT.
Given the amendment to clause (a)(D) of the definition of Borrowing Base to be
effected by this Seventh Amendment, on March 1, 2006, Agent and Co-Agent shall
release the reserve in the amount of $24,919,414.62 established pursuant to the
Fourth Amendment with respect to the proceeds of the AMAP Sale (as defined in
the Fourth Amendment).
SECTION 6. REPRESENTATIONS AND WARRANTIES. In order to induce the
Agent, the Co-Agent and the Lenders to enter into this Seventh Amendment, the
Borrower Parties hereby represent and warrant that:
6.01 NO DEFAULT. At and as of the date of this Seventh Amendment and
after giving effect to this Seventh Amendment, no Default or Event of Default
exists.
6.02 REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. At and as of the
date of this Seventh Amendment and both prior to (other than with respect to the
Section 7.24 November Default and the Landlord Waiver Default) and after giving
effect to this Seventh Amendment, each of the representations and warranties
contained in the Credit Agreement and other Loan Documents is true and correct
in all material respects.
6.03 CORPORATE POWER, ETC. The Borrower Parties (a) have all requisite
corporate power and authority to execute and deliver this Seventh Amendment and
to consummate the transactions contemplated hereby and (b) have taken all
action, corporate or otherwise, necessary to authorize the execution and
delivery of this Seventh Amendment and the consummation of the transactions
contemplated hereby.
6.04 NO CONFLICT. Neither the execution and delivery of this Seventh
Amendment nor consummation of the transactions contemplated hereby will (a)
conflict with or result in any breach or violation of any provision of the
certificate of incorporation, certificate of formation or by-laws of the
Borrower Parties, (b) result in any breach or violation of, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in the creation of a Lien upon any of the
properties or assets of the Borrower Parties under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, deed of trust, license,
lease agreement or other instrument or obligation to which the Borrower Parties
are parties or to which any of their properties or assets are subject, (c)
require any consent, approval, authorization or permit of, or filing with or
notification to, any third party or any Governmental Authority, or (d) violate
any order, writ, injunction, decree, judgment, ruling, law, statute, rule or
regulation of any Governmental Authority.
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6.05 BINDING EFFECT. This Seventh Amendment has been duly executed and
delivered by the Borrower Parties and constitutes the legal, valid and binding
obligation of the Borrower Parties, enforceable against the Borrower Parties in
accordance with its terms, except as such enforceability may be limited by (a)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws, now or hereafter in effect, relating to or affecting the enforcement of
creditors' rights generally, and (b) the application of general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
SECTION 7. CONDITIONS. This Seventh Amendment shall be effective
upon the fulfillment by the Borrower Parties, in a manner satisfactory to the
Co-Agent, the Agent and the Lenders, of all of the following conditions
precedent set forth in this Section 7 (such date, the "Effective Date");
provided that Section 3.05(b) of this Seventh Amendment shall not become
effective until March 1, 2006:
7.01 EXECUTION OF THE SEVENTH AMENDMENT. Each of the parties hereto
shall have executed an original counterpart of this Seventh Amendment and shall
have delivered (including by way of telefacsimile or electronic mail) the same
to the Co-Agent.
7.02 REPRESENTATIONS AND WARRANTIES. As of the Effective Date, the
representations and warranties set forth in Section 6 hereof shall be true and
correct.
7.03 TERMINATION OF SECOND LIEN PLEDGES. The Co-Agent and the Agent
shall have received satisfactory evidence that the Second Lien Agent shall have
terminated each of the second lien pledges granted in its favor that correspond
to the Applicable Foreign Pledges granted in favor of the Agent and the
Co-Agent.
7.04 DELIVERY OF OTHER DOCUMENTS. The Co-Agent and the Agent shall have
received all such other instruments, documents and agreements as the Co-Agent or
the Agent may reasonably request, in form and substance reasonably satisfactory
to the Co-Agent and the Agent.
SECTION 8. MISCELLANEOUS.
8.01 CONTINUING EFFECT. Except as specifically provided herein, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect in accordance with their respective terms and are hereby ratified and
confirmed in all respects.
8.02 NO WAIVER; RESERVATION OF RIGHTS. This Seventh Amendment is
limited as specified and the execution, delivery and effectiveness of this
Seventh Amendment shall not operate as a modification, acceptance or waiver of
any provision of the Credit Agreement, or any other Loan Document, except as
specifically set forth herein. Notwithstanding anything contained in this
Seventh Amendment to the contrary, the Agent, the Co-Agent and the Lenders
expressly reserve the right to exercise any and all of their rights and remedies
under the Credit Agreement, any other Loan Document and applicable law in
respect of any Default or Event of Default.
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8.03 REFERENCES.
(a) From and after the Effective Date, (i) the Credit Agreement, the
other Loan Documents and all agreements, instruments and documents executed and
delivered in connection with any of the foregoing shall each be deemed amended
hereby to the extent necessary, if any, to give effect to the provisions of this
Seventh Amendment and (ii) all of the terms and provisions of this Seventh
Amendment are hereby incorporated by reference into the Credit Agreement, as
applicable, as if such terms and provisions were set forth in full therein, as
applicable.
(b) From and after the Effective Date, (i) all references in the
Credit Agreement to "this Agreement", "hereto", "hereof", "hereunder" or words
of like import referring to the Credit Agreement shall mean the Credit Agreement
as amended hereby and (ii) all references in the Credit Agreement, the other
Loan Documents or any other agreement, instrument or document executed and
delivered in connection therewith to "Credit Agreement", "thereto", "thereof",
"thereunder" or words of like import referring to the Credit Agreement shall
mean the Credit Agreement as amended hereby.
8.04 GOVERNING LAW. THIS SEVENTH AMENDMENT, AND ALL MATTERS ARISING OUT
OF OR RELATING TO THE SUBJECT MATTER HEREOF, SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8.05 SEVERABILITY. The provisions of this Seventh Amendment are
severable, and if any clause or provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction and shall not in any manner affect such clause or provision in
any other jurisdiction, or any other clause or provision in this Seventh
Amendment in any jurisdiction.
8.06 COUNTERPARTS. This Seventh Amendment may be executed in any number
of counterparts, each of which counterparts when executed and delivered shall be
an original, but all of which shall together constitute one and the same
instrument. Delivery of an executed counterpart of this Seventh Amendment by
telefacsimile or electronic mail shall be equally effective as delivery of a
manually executed counterpart. A complete set of counterparts shall be lodged
with the Borrower Parties, the Agent, the Co-Agent and each Lender.
8.07 HEADINGS. Section headings in this Seventh Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Seventh Amendment for any other purpose.
8.08 BINDING EFFECT; ASSIGNMENT. This Seventh Amendment shall be
binding upon and inure to the benefit of the Borrower Parties, the Agent, the
Co-Agent and the Lenders and their respective successors and assigns; provided,
however, that the rights and obligations of the Borrower Parties under this
Seventh Amendment shall not be assigned or delegated without the prior written
consent of the Agent, the Co-Agent and the Lenders.
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8.09 EXPENSES. The Borrowers agree to pay the Agent and Co-Agent upon
demand, for all reasonable expenses, including reasonable fees of attorneys and
paralegals for the Agent, the Co-Agent and the Lenders (who may be employees of
the Agent, Co-Agent or the Lenders), incurred by the Agent, the Co-Agent and the
Lenders in connection with the preparation, negotiation and execution of this
Seventh Amendment and any document required to be furnished herewith.
8.10 INTEGRATION. This Seventh Amendment, together with the other Loan
Documents, incorporates all negotiations of the parties hereto with respect to
the subject matter hereof and is the final expression and agreement of the
parties hereto with respect to the subject matter hereof.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Seventh
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
BORROWERS:
SALTON, INC., a Delaware corporation
By:
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Title:
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TOASTMASTER INC., a Missouri corporation
By:
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Title:
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SALTON TOASTMASTER LOGISTICS LLC,
a Delaware limited liability company
By:
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Title:
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GUARANTORS:
HOME CREATIONS DIRECT, LTD.,
a Delaware corporation
By:
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Title:
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SONEX INTERNATIONAL CORPORATION,
a Delaware corporation
By:
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Title:
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ICEBOX, LLC, an Illinois limited liability
company
By:
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Title:
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FAMILY PRODUCTS INC., a Delaware corporation
By:
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Title:
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SALTON HOLDINGS, INC., a Delaware corporation
By:
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Title:
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AGENT, CO-AGENT AND LENDERS:
XXXXX FARGO FOOTHILL, INC.
as the Administrative Agent, the Collateral
Agent and as a Lender
By:
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Its:
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SILVER POINT FINANCE, LLC, as the Co-Agent,
the Documentation Agent, and the Syndication
Agent
By:
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Its:
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TRS THEBE LLC, as a Lender
By:
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Its:
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SEA PINES FUNDING LLC, as a Lender
By:
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Its:
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SPIRET IV LOAN TRUST 2003-A, as a Lender
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as trustee
By:
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Its:
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SPCP GROUP LLC, as a Lender
By:
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Its:
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FIELD POINT I, LTD., as a Lender
By:
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Its:
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FIELD POINT II, LTD., as a Lender
By:
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Its:
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