EXHIBIT 99.1
FIFTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Fifth Amendment") is made and entered into as of October 7, 2005, 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:
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, and as of September 22,
2005, and as it may be further amended, modified, supplemented or amended and
restated from time to time, the "Credit Agreement"); and
WHEREAS, the Borrower Parties, the Lenders, the Agent and the Co-Agent
wish to amend the Credit Agreement as herein provided;
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. AMENDMENTS TO ANNEX A OF THE CREDIT AGREEMENT. Annex A of the Credit
Agreement is hereby amended, effective as of the date this Fifth Amendment
becomes effective in accordance with Section 4 hereof, as follows:
2.01 The definition of "Letter of Credit Subfacility" in Annex A of the
Credit Agreement is hereby amended by deleting "$10,000,000" therein and
inserting "$15,000,000" in lieu thereof; and
2.02 The definition of "Unused Letter of Credit Subfacility" in Annex A
of the Credit Agreement is hereby amended by deleting "$10,000,000" therein and
inserting "$15,000,000" in lieu thereof.
SECTION 3. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent, the
Co-Agent and the Lenders to enter into this Fifth Amendment, the Borrower
Parties hereby represent and warrant that:
3.01 NO DEFAULT. At and as of the date of this Fifth Amendment and
after giving effect to this Fifth Amendment, no Default or Event of Default
exists.
3.02 REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. At and as of the
date of this Fifth Amendment and both prior to and after giving effect to this
Fifth Amendment, each of the representations and warranties contained in the
Credit Agreement and other Loan Documents is true and correct in all material
respects.
3.03 CORPORATE POWER, ETC. The Borrower Parties (a) have all requisite
corporate power and authority to execute and deliver this Fifth 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 Fifth Amendment and the consummation of the transactions contemplated
hereby.
3.04 NO CONFLICT. Neither the execution and delivery of this Fifth
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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3.05 BINDING EFFECT. This Fifth 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 4. CONDITIONS. This Fifth 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 4 (such date, the "Effective Date"):
4.01 EXECUTION OF THE FIFTH AMENDMENT. Each of the parties hereto shall
have executed an original counterpart of this Fifth Amendment and shall have
delivered (including by way of telefacsimile or electronic mail) the same to the
Co-Agent.
4.02 REPRESENTATIONS AND WARRANTIES. As of the Effective Date, the
representations and warranties set forth in Section 3 hereof shall be true and
correct.
4.03 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 5. MISCELLANEOUS.
5.01 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.
5.02 NO WAIVER; RESERVATION OF RIGHTS. This Fifth Amendment is limited
as specified and the execution, delivery and effectiveness of this Fifth
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 Fifth
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.
5.03 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 Fifth Amendment and (ii) all of the terms and provisions
of this Fifth Amendment are hereby incorporated by reference into the Credit
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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.
5.04 GOVERNING LAW. THIS FIFTH 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.
5.05 SEVERABILITY. The provisions of this Fifth 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 Fifth Amendment
in any jurisdiction.
5.06 COUNTERPARTS. This Fifth Amendment may be executed in any number
of counterparts and by facsimile, 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 Fifth
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.
5.07 HEADINGS. Section headings in this Fifth Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Fifth Amendment for any other purpose.
5.08 BINDING EFFECT; ASSIGNMENT. This Fifth 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 Fifth
Amendment shall not be assigned or delegated without the prior written consent
of the Agent, the Co-Agent and the Lenders.
5.09 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
Fifth Amendment and any document required to be furnished herewith.
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5.10 INTEGRATION. This Fifth 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 Fifth 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:
---------------------------------
Title:
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SALTON TOASTMASTER LOGISTICS LLC,
a Delaware limited liability company
By:
---------------------------------
Title:
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GUARANTORS:
HOME CREATIONS DIRECT, LTD.,
a Delaware corporation
By:
---------------------------------
Title:
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SONEX INTERNATIONAL CORPORATION,
a Delaware corporation
By:
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Title:
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[SIGNATURE PAGE OF FIFTH AMENDMENT]
ICEBOX, LLC, an Illinois limited
liability company
By:
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Title:
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FAMILY PRODUCTS INC., a Delaware
corporation
By:
---------------------------------
Title:
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SALTON HOLDINGS, INC., a Delaware
corporation
By:
---------------------------------
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:
---------------------------------
Its:
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SILVER POINT FINANCE, LLC, as the
Co-Agent, the Documentation Agent,
and the Syndication Agent
By:
---------------------------------
Its:
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[SIGNATURE PAGE OF FIFTH AMENDMENT]
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:
---------------------------------
Its:
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SPCP GROUP LLC, as a Lender
By:
---------------------------------
Its:
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FIELD POINT I, LTD., as a Lender
By:
---------------------------------
Its:
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FIELD POINT II, LTD., as a Lender
By:
---------------------------------
Its:
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[SIGNATURE PAGE OF FIFTH AMENDMENT]
