EXHIBIT 99.2
EXECUTION COPY
WAIVER AND CONSENT UNDER AMENDED AND RESTATED CREDIT AGREEMENT
THIS WAIVER AND CONSENT UNDER AMENDED AND RESTATED CREDIT AGREEMENT
(this "Waiver") is made and entered into as of September 22, 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 amended as of May 11, 2005, as amended as of July 8, 2005,
and as it may be further amended, modified, supplemented or amended and restated
from time to time, the "Credit Agreement");
WHEREAS, concurrently herewith, the Lenders, the Agent, the Co-Agent
and the Borrower Parties are entering into a Fourth Amendment to the Credit
Agreement dated as of the date hereof (the "Fourth Amendment");
WHEREAS, Parent and Interactive Capital (Proprietary) Limited (on its
own behalf and on behalf of each member of a consortium) entered into a Sale
Agreement dated as of August 26, 2005 (a copy of which is attached as Annex A
hereto, the "AMAP Share Sale Agreement"), pursuant to which Parent agreed to
cause the sale (the "AMAP Sale") by Pifco Overseas Limited, a company organized
under the laws of Hong Kong and an indirect subsidiary of Parent ("Pifco"), of
111,544,628 ordinary shares in the issued share capital of Amalgamated Appliance
Holdings Limited, a company organized under the laws of South Africa ("AMAP"),
for a purchase price (the "Purchase Price") of 518,682,520 Rand;
WHEREAS, absent a waiver from the Agent, the Co-Agent and the Required
Lenders, the consummation of the AMAP Sale would violate Section 7.9 of the
Credit Agreement; and
WHEREAS, the Borrower Parties have requested, and the Agent, the
Co-Agent and the Required Lenders have agreed, subject to the terms and
conditions herein, to the waiver and release of security interest set forth
herein in connection with the AMAP Sale;
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. WAIVER. 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 Loan Parties' compliance with Section 7.9 of the Credit Agreement
solely insofar as such Section would prohibit the Loan Parties from consummating
the AMAP Sale on the terms set forth in the AMAP Share Sale Agreement.
SECTION 3. RELEASE OF SECURITY INTEREST. Subject to the satisfaction of the
terms and conditions set forth herein, the Agent, the Co-Agent and the Required
Lenders hereby agree to release, without recourse and without any representation
or warranty of any kind, the security interest in the AMAP Shares granted
pursuant to that certain Pledge Agreement dated as of May 23, 2005 made by Pifco
in favor of the Agent, immediately following the application of the proceeds of
the AMAP Sale in accordance with Section 3.1(c) of the Credit Agreement, as
amended by the Fourth Amendment (it being understood and agreed that this
Section 3 shall in no way effect any release of any lien or security interest in
any Collateral other than in the AMAP Shares pursuant hereto). The Borrower
Parties hereby release the Agent, the Co-Agent and the Lenders from any duty,
liability or obligation (if any) under any Loan Document in respect of the AMAP
Shares.
SECTION 4. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent, the
Co-Agent and the Lenders to enter into this Waiver, the Borrower Parties hereby
represent and warrant that:
4.01 NO DEFAULT. At and as of the date of this Waiver (after giving
effect to this Waiver), no Default or Event of Default exists.
4.02 REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. At and as of the
date of this Waiver and both prior to and after giving effect to this Waiver,
each of the representations and warranties contained in the Credit Agreement and
other Loan Documents is true and correct in all material respects.
4.03 CORPORATE POWER, ETC. The Borrower Parties (a) have all requisite
corporate power and authority to execute and deliver this Waiver 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 Waiver and the consummation of the transactions contemplated hereby.
4.04 NO CONFLICT. Neither the execution and delivery of this Waiver 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
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party or any Governmental Authority, or (d) violate any order, writ, injunction,
decree, judgment, ruling, law, statute, rule or regulation of any Governmental
Authority.
4.05 BINDING EFFECT. This Waiver 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 5. CONDITIONS. This Waiver shall be effective upon the fulfillment by
the Borrower Parties, in a manner satisfactory to the Co-Agent, the Agent and
the Required Lenders, of all of the following conditions precedent set forth in
this Section 5 (such date, the "Effective Date"):
5.01 EXECUTION OF THE WAIVER. Each of the parties hereto shall have
executed an original counterpart of this Waiver and shall have delivered
(including by way of telefacsimile or electronic mail) the same to the Co-Agent
and the Agent.
5.02 AMAP SALE DOCUMENTS. The Borrower Parties shall have delivered to
the Co-Agent and the Agent true and complete copies of the AMAP Share Sale
Agreement and all other documents relating to the AMAP Sale, and such documents
shall be in form and substance satisfactory to the Co-Agent and the Agent.
5.03 PURCHASE PRICE; APPLICATION OF PROCEEDS. The AMAP Sale shall have
been consummated and the Purchase Price received by Parent, after conversion
into Dollars, shall be at least equal to $77,500,000, and the proceeds of the
AMAP Sale shall be applied in accordance with Section 3.1(c) of the Credit
Agreement, as amended by the Fourth Amendment.
5.04 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.
5.05 REPRESENTATIONS AND WARRANTIES. As of the Effective Date, the
representations and warranties set forth in Section 4 hereof shall be true and
correct.
SECTION 6. MISCELLANEOUS.
6.01 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.
6.02 NO WAIVER; RESERVATION OF RIGHTS. This Waiver is limited as
specified and the execution, delivery and effectiveness of this Waiver 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 Waiver to the contrary, the Agent,
the Co-Agent and the Lenders expressly reserve the right to exercise any and all
of their rights
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and remedies under the Credit Agreement, any other Loan Document and applicable
law in respect of any Default or Event of Default.
6.03 GOVERNING LAW. THIS WAIVER, 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.
6.04 SEVERABILITY. The provisions of this Waiver 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 Waiver in any jurisdiction.
6.05 COUNTERPARTS. This Waiver 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 Waiver 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.
6.06 HEADINGS. Section headings in this Waiver are included herein for
convenience of reference only and shall not constitute a part of this Waiver for
any other purpose.
6.07 BINDING EFFECT; ASSIGNMENT. This Waiver 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 Waiver shall not be
assigned or delegated without the prior written consent of the Agent, the
Co-Agent and the Lenders.
6.08 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
Waiver and any document required to be furnished herewith.
6.09 INTEGRATION. This Waiver, 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.
6.10 FURTHER ASSURANCES. The Agent and the Co-Agent agree, and the
Required Lenders hereby authorize the Agent and the Co-Agent, to execute and
deliver, at the sole cost and expense of the Borrower Parties, such further
instruments and documents as may be reasonably necessary to carry out the
purpose and intent of Section 3 hereof.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver 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:
---------------------------------
Title:
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[SIGNATURE PAGE OF WAIVER]
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 AND CO-AGENT:
XXXXX FARGO FOOTHILL, INC.,
as the Administrative Agent and the
Collateral Agent
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 WAIVER]
LENDERS:
TRS THEBE LLC, as a Lender
By:
---------------------------------
Its:
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SEA PINES FUNDING LLC, as a Lender
By:
---------------------------------
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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XXXXX FARGO FOOTHILL, INC., as a
Lender
By:
---------------------------------
Title:
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[SIGNATURE PAGE OF WAIVER]
