Exhibit 99.1
EXECUTION COPY
NINTH AMENDMENT
TO, AND WAIVER UNDER, AMENDED AND RESTATED CREDIT AGREEMENT
THIS NINTH AMENDMENT TO, AND WAIVER UNDER, AMENDED AND RESTATED CREDIT
AGREEMENT (this "Ninth Amendment") is made and entered into as of August 15,
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:
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, as of November 9, 2005, February 8, 2006, and May 10, 2006,
and as it may be further amended, modified, supplemented or amended and restated
from time to time, the "Credit Agreement");
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 and that certain Eighth Amendment to, and Waiver under,
Amended and Restated Credit Agreement dated as of May 10, 2006), Borrowers
agreed to deliver to the Co-Agent, on or prior to June 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; 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. WAIVERS UNDER CREDIT AGREEMENT.
2.01 WAIVER AND AGREEMENT IN CONNECTION WITH LANDLORD WAIVER 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
Waiver 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 that certain Eighth Amendment to, and Waiver
under, Amended and Restated Credit Agreement dated as of May 10, 2006) 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 September 15,
2006.
SECTION 3. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is hereby
amended, effective as of the date this Ninth Amendment becomes effective in
accordance with Section 6 hereof, as follows:
3.01 AMENDMENT TO SECTION 3.1(C). Section 3.1(c) of the Credit
Agreement is hereby amended by deleting clause (iv) thereof in its entirety and
inserting the following in lieu thereof: "If the aggregate outstanding principal
amount of the Loans exceeds the sum of (a) the result of the sums of clauses
(a)(A), (a)(B) and (a)(C) of the definition of Borrowing Base, plus (b)
$23,000,000 on March 31, 2007, then, on such date, the Borrowers shall prepay
the outstanding principal amount of the Revolving Loans (on a ratable basis) in
an amount equal to such excess."
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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:
Applicable Ratio Applicable Period
---------------- -----------------
0.28 to 1.00 For the 12-month period ending April 30, 2007
0.31 to 1.00 For the 12-month period ending May 31, 2007
0.47 to 1.00 For the 12-month period ending June 30, 2007
A ratio determined by Co-Agent based on the For each 12-month period ending on the last day of
projections delivered pursuant to Section each month thereafter
5.2(g) satisfactory to Co-Agent, unless otherwise
agreed to in writing by Co-Agent and the Borrowers
3.03 AMENDMENTS TO SECTION 7.25 OF THE CREDIT AGREEMENT. Section 7.25 of
the Credit Agreement is hereby amended by deleting it in its entirety and
inserting the following in lieu thereof:
"7.24 Cash Flow. No Borrower Party shall permit both Cash Receipts and Net
Cash Flow, for the monthly periods set forth below, to be less than the
respective amounts set forth below for the applicable period set forth
below:
Applicable Applicable Net
Cash Receipts Cash Flow Applicable Period
------------- -------------- -----------------
$18,609,000 $(57,238,000) For the month ending August 31, 2006
$14,595,000 $(40,209,000) For the month ending September 30, 2006
$26,517,000 $ 5,332,000 For the month ending October 31, 2006
$28,767,000 $ 13,017,000 For the month ending November 30, 2006
$26,215,000 $ 13,283,000 For the month ending December 31, 2006
$37,467,000 $ 15,575,000 For the month ending January 31, 2007
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$18,068,000 $ 2,456,000 For the month ending February 28, 2007
$16,713,000 $ 7,811,000 For the month ending March 31, 2007
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), 4.50%, and (b) with respect to
LIBOR Rate Loans, 6.50%".
(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 sum of
(i) the lesser of
(A) the sum of
(I) ten percent (10%) of the Net Amount of Eligible
Accounts, plus
(II) the sum of (x) twenty-four percent (24%) of the
value of the Eligible Landed Inventory, plus (y) 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
(B) $16,200,000; plus
(ii) $26,250,000
; provided, that, notwithstanding the foregoing, from and after March
31, 2007, the result of this clause (D) shall not exceed $23,000,000,"
(c) The following definition of "Cash Disbursements" is hereby
inserted in proper alphabetical order:
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""Cash Disbursements" means, for any period of determination, all cash
disbursements (excluding fees paid in cash by Parent and its Subsidiaries to
Xxxxxxxx Xxxxx Xxxxxx & Xxxxx and Xxxxx Inc.) made by Parent and its
Subsidiaries during such period."
(d) The following definition of "Cash Receipts" is hereby inserted in
proper alphabetical order:
""Cash Receipts" means, for any period of determination, all cash
Collections received by Parent and its Subsidiaries during such period."
(e) 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, (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
August 15, 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, (f)
the aggregate amount of losses resulting from the sale of slow moving or excess
Inventory of Borrower Parties during the period from August 15, 2006 through and
including December 31, 2006 in an aggregate amount not to exceed $6,000,000;
provided, that no amount shall be added back under this clause (f) 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 (f) from
and after the date that the Borrower Parties shall have received an aggregate
amount of $6,000,000 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, and (g) fees paid by Borrowers to Xxxxxxxx Xxxxx Xxxxxx &
Xxxxx and Xxxxx Inc. .
(f) The definition of "Make-Whole Amount" is hereby amended by
deleting it in its entirety and inserting the following in lieu thereof:
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""Make-Whole Amount" means, as of any date of determination, an amount
equal to 5.00% times the Maximum Amount; provided that, in the event of a
prepayment of less than the entire outstanding amount of the Term Loans and the
Revolving Loans after the commencement of the Exercise of Secured Creditor
Remedies (as defined in the Intercreditor Agreement) that results in a permanent
reduction of the Maximum Amount and the Commitments pursuant to Section 9(b) of
the Intercreditor Agreement, the Make-Whole Amount shall be equal to (x) the
Make-Whole Amount, determined as set forth above, times the result of (y) the
amount of such prepayment divided by the Maximum Amount (less any prior
permanent reductions thereof)."
(g) The following definition of "Net Cash Flow" is hereby is hereby
inserted in proper alphabetical order:
""Net Cash Flow" means, for any period of determination, Cash Receipts
for such period minus Cash Disbursements for such period."
SECTION 4. CONSULTANT. Within 7 days after a request by the Co-Agent,
Borrowers shall engage a consultant reasonably acceptable to Co-Agent.
SECTION 5. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent,
the Co-Agent and the Lenders to enter into this Ninth Amendment, the Borrower
Parties hereby represent and warrant that:
5.01 NO DEFAULT. At and as of the date of this Ninth Amendment and after
giving effect to this Ninth Amendment, no Default or Event of Default exists.
5.02 REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. At and as of the date
of this Ninth Amendment and both prior to (other than with respect to the
Landlord Waiver Default) and after giving effect to this Ninth Amendment, each
of the representations and warranties contained in the Credit Agreement and
other Loan Documents is true and correct in all material respects.
5.03 CORPORATE POWER, ETC. The Borrower Parties (a) have all requisite
corporate power and authority to execute and deliver this Ninth 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 Ninth Amendment and the consummation of the transactions contemplated
hereby.
5.04 NO CONFLICT. Neither the execution and delivery of this Ninth
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
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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.
5.05 BINDING EFFECT. This Ninth 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 6. CONDITIONS. This Ninth 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 6 (such date, the "Effective Date"):
6.01 EXECUTION OF THE NINTH AMENDMENT. Each of the parties hereto shall
have executed an original counterpart of this Ninth Amendment and shall have
delivered (including by way of telefacsimile or electronic mail) the same to the
Co-Agent.
6.02 REPRESENTATIONS AND WARRANTIES. As of the Effective Date, the
representations and warranties set forth in Section 5 hereof shall be true and
correct.
6.03 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 7. MISCELLANEOUS.
7.01 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.
7.02 NO WAIVER; RESERVATION OF RIGHTS. This Ninth Amendment is limited as
specified and the execution, delivery and effectiveness of this Ninth 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 Ninth 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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7.03 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
Ninth Amendment and (ii) all of the terms and provisions of this Ninth 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.
7.04 GOVERNING LAW. THIS NINTH 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.
7.05 SEVERABILITY. The provisions of this Ninth 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 Ninth Amendment in any
jurisdiction.
7.06 COUNTERPARTS. This Ninth 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 Ninth 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.
7.07 HEADINGS. Section headings in this Ninth Amendment are included herein
for convenience of reference only and shall not constitute a part of this Ninth
Amendment for any other purpose.
7.08 BINDING EFFECT; ASSIGNMENT. This Ninth 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 Ninth Amendment
shall not be assigned or delegated without the prior written consent of the
Agent, the Co-Agent and the Lenders.
7.09 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,
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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 Ninth Amendment and any
document required to be furnished herewith.
7.10 INTEGRATION. This Ninth 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 Ninth 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: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Title: Xxxx Xxxxxxxxxx, Senior Vice
President
TOASTMASTER INC., a Missouri corporation
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Title: Xxxx Xxxxxxxxxx, Vice President
SALTON TOASTMASTER LOGISTICS LLC, a
Delaware limited liability company
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Title: Xxxx Xxxxxxxxxx, Vice President
GUARANTORS:
HOME CREATIONS DIRECT, LTD.,
a Delaware corporation
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Title: Xxxx Xxxxxxxxxx, Vice President
SONEX INTERNATIONAL CORPORATION, a
Delaware corporation
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Title: Xxxx Xxxxxxxxxx, Vice President
[SIGNATURE PAGE OF 9TH AMENDMENT]
ICEBOX, LLC, an Illinois limited
liability company
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Title: Xxxx Xxxxxxxxxx, Vice President
FAMILY PRODUCTS INC., a Delaware
corporation
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Title: Xxxx Xxxxxxxxxx, Vice President
SALTON HOLDINGS, INC., a Delaware
corporation
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Title: Xxxx Xxxxxxxxxx, Vice President
AGENT, CO-AGENT AND LENDERS:
XXXXX FARGO FOOTHILL, INC.
as the Administrative Agent, the
Collateral Agent and as a Lender
By:
------------------------------------
Its:
-----------------------------------
SILVER POINT FINANCE, LLC, as the
Co-Agent, the Documentation Agent, and
the Syndication Agent
By:
------------------------------------
Its:
-----------------------------------
[SIGNATURE PAGE OF 9TH AMENDMENT]
ICEBOX, LLC, an Illinois limited
liability company
By:
------------------------------------
Title:
---------------------------------
FAMILY PRODUCTS INC., a Delaware
corporation
By:
------------------------------------
Title:
---------------------------------
SALTON HOLDINGS, INC., a Delaware
corporation
By:
------------------------------------
Title:
---------------------------------
AGENT, CO-AGENT AND LENDERS:
XXXXX FARGO FOOTHILL, INC.
as the Administrative Agent, the
Collateral Agent and as a Lender
By: /s/ Illegible
------------------------------------
Its: Vice President
SILVER POINT FINANCE, LLC, as the
Co-Agent, the Documentation Agent, and
the Syndication Agent
By:
------------------------------------
Its:
-----------------------------------
[SIGNATURE PAGE OF 9TH AMENDMENT]
ICEBOX, LLC, an Illinois limited
liability company
By:
------------------------------------
Title:
---------------------------------
FAMILY PRODUCTS INC., a Delaware
corporation
By:
------------------------------------
Title:
---------------------------------
SALTON HOLDINGS, INC., a Delaware
corporation
By:
------------------------------------
Title:
---------------------------------
AGENT, CO-AGENT AND LENDERS:
XXXXX FARGO FOOTHILL, INC.
as the Administrative Agent, the
Collateral Agent and as a Lender
By:
------------------------------------
Its:
-----------------------------------
SILVER POINT FINANCE, LLC, as the
Co-Agent, the Documentation Agent, and
the Syndication Agent
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Its: Authorised Signatory
[SIGNATURE PAGE OF 9TH AMENDMENT]
TRS THEBE LLC, as a Lender
By: DEUTSCHE BANK TRUST COMPANY
AMERICAS, ITS SOLE MEMBER
By: DB SERVICES NEW JERSEY, INC.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Its: Assistant Vice President
By: /s/ Illegible
------------------------------------
Vice President
SPIRET IV LOAN TRUST 2003-A, as a Lender
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
trustee
By:
------------------------------------
Its:
-----------------------------------
FIELD POINT I, LTD., as a Lender
By:
------------------------------------
Its:
-----------------------------------
FIELD POINT II, LTD., as a Lender
By:
------------------------------------
Its:
-----------------------------------
FIELD POINT III, LTD., as a Lender
By:
------------------------------------
Its:
-----------------------------------
FIELD POINT IV, LTD., as a Lender
By:
------------------------------------
Its:
-----------------------------------
[SIGNATURE PAGE OF 9TH AMENDMENT]
TRS THEBE LLC, as a Lender
By:
------------------------------------
Its:
-----------------------------------
SPIRET IV LOAN TRUST 2003-A, as a Lender
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
trustee
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Its: Sr. Financial Services Officer
FIELD POINT I, LTD., as a Lender
By:
------------------------------------
Its:
-----------------------------------
FIELD POINT II, LTD., as a Lender
By:
------------------------------------
Its:
-----------------------------------
FIELD POINT III, LTD., as a Lender
By:
------------------------------------
Its:
-----------------------------------
FIELD POINT IV, LTD., as a Lender
By:
------------------------------------
Its:
-----------------------------------
[SIGNATURE PAGE OF 9TH AMENDMENT]
TRS THEBE LLC, as a Lender
By:
------------------------------------
Its:
-----------------------------------
SPIRET IV LOAN TRUST 2003-A, as a Lender
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
trustee
By:
------------------------------------
Its:
-----------------------------------
FIELD POINT I, LTD., as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Its: Authorized Signatory
FIELD POINT II, LTD., as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Its: Authorized Signatory
FIELD POINT III, LTD., as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Its: Authorized Signatory
FIELD POINT IV, LTD., as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Its: Authorized Signatory
[SIGNATURE PAGE OF 9TH AMENDMENT]
SCHEDULE 7.22
EBITDA
Applicable Amount Applicable Period
----------------- -----------------
$12,215,000 For the 12-month period ending April 30, 2007
$13,590,000 For the 12-month period ending May 31, 2007
$22,631,000 For the 12-month period ending June 30, 2007
An amount determined by Co-Agent based on the For each 12-month period ending at the end
projections delivered pursuant to Section 5.2(g) of each month thereafter
satisfactory to Co-Agent, unless otherwise agreed
to in writing by Co-Agent and the Borrowers
