ELEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 99.1
ELEVENTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS ELEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Eleventh
Amendment”) is made and entered into as of April 13, 2007, 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, as of February 8, 2006, as of
May 10, 2006, as of August 15, 2006 and as of February 12, 2007 and as it may be further amended,
modified, supplemented or amended and restated from time to time, the “Credit Agreement”);
WHEREAS, the Borrowers have requested, and the Agent, the Co-Agent and the Lenders have
agreed, to amend the definition of Borrowing Base in the Credit Agreement as set forth herein;
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.
1.01 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) | $32,189,509.48 |
;provided, that, notwithstanding the foregoing, from and after June
30, 2007, the result of this clause (D) shall not exceed
$23,000,000,”
Section 2. Representations and Warranties. In order to induce the Agent, the Co-Agent
and the Lenders to enter into this Eleventh Amendment, the Borrower Parties hereby represent and
warrant that:
2.01 No Default. At and as of the date of this Eleventh Amendment and after giving
effect to this Eleventh Amendment, no Default or Event of Default exists.
2.02 Representations and Warranties True and Correct. At and as of the date of this
Eleventh Amendment and both prior to and after giving effect to this Eleventh Amendment, each of
the representations and warranties contained in the Credit Agreement and other Loan Documents is
true and correct in all material respects.
2.03 Corporate Power, Etc. The Borrower Parties (a) have all requisite corporate
power and authority to execute and deliver this Eleventh 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 Eleventh Amendment and the consummation of the
transactions contemplated hereby.
2.04 No Conflict. Neither the execution and delivery of this Eleventh 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
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Authority, or (d) violate any order, writ, injunction, decree, judgment, ruling, law, statute,
rule or regulation of any Governmental Authority.
2.05 Binding Effect. This Eleventh 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 3. Conditions. This Eleventh 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 5 (such
date, the “Effective Date”):
3.01 Execution of the Eleventh Amendment. Each of the parties hereto shall have
executed an original counterpart of this Eleventh Amendment and shall have delivered (including by
way of telefacsimile or electronic mail) the same to the Co-Agent.
3.02 Representations and Warranties. As of the Effective Date, the representations
and warranties set forth in Section 4 hereof shall be true and correct.
3.03 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 4. Miscellaneous.
4.01 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.
4.02 No Waiver; Reservation of Rights. This Eleventh Amendment is limited as
specified and the execution, delivery and effectiveness of this Eleventh 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 Eleventh 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.
4.03 References.
(a) From and after the Effective Date, (i) the Credit Agreement, the other Loan Documents and
all agreements, instruments and documents executed
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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 Eleventh Amendment and (ii)
all of the terms and provisions of this Eleventh 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.
4.04 Governing Law. THIS ELEVENTH 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.
4.05 Severability. The provisions of this Eleventh 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 Eleventh Amendment in any
jurisdiction.
4.06 Counterparts. This Eleventh 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 Eleventh 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.
4.07 Headings. Section headings in this Eleventh Amendment are included herein for
convenience of reference only and shall not constitute a part of this Eleventh Amendment for any
other purpose.
4.08 Binding Effect; Assignment. This Eleventh 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 Eleventh Amendment shall not be assigned or
delegated without the prior written consent of the Agent, the Co-Agent and the Lenders.
4.09 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
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preparation, negotiation and execution of this Eleventh Amendment and any document required to
be furnished herewith.
4.10 Integration. This Eleventh 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 Eleventh Amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above written.
| BORROWERS: SALTON, INC., a Delaware corporation |
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| By: | /s/ Xxxxxxx Xxxx | |||
| Title: | Chief Financial Officer | |||
| TOASTMASTER INC., a Missouri corporation |
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| By: | /s/ Xxxxxxx Xxxx | |||
| Title: | Chief Financial Officer | |||
| SALTON TOASTMASTER LOGISTICS LLC, a Delaware limited liability company |
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| By: | /s/ Xxxxxxx Xxxx | |||
| Title: | Chief Financial Officer | |||
| GUARANTORS: HOME CREATIONS DIRECT, LTD., a Delaware corporation |
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| By: | /s/ Xxxxxxx Xxxx | |||
| Title: | Chief Financial Officer | |||
| SONEX INTERNATIONAL CORPORATION, a Delaware corporation |
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| By: | /s/ Xxxxxxx Xxxx | |||
| Title: | Chief Financial Officer | |||
| ICEBOX, LLC, an Illinois limited liability company |
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| By: | /s/ Xxxxxxx Xxxx | |||
| Title: | Chief Financial Officer | |||
| FAMILY PRODUCTS INC., a Delaware corporation |
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| By: | /s/ Xxxxxxx Xxxx | |||
| Title: | Chief Financial Officer | |||
| SALTON HOLDINGS, INC., a Delaware corporation |
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| By: | /s/ Xxxxxxx Xxxx | |||
| Title: | Chief Financial Officer | |||
| AGENT, CO-AGENT AND LENDERS: XXXXX FARGO FOOTHILL, INC. as the Administrative Agent, the Collateral Agent and as a Lender |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Its: | Vice President | |||
| SILVER POINT FINANCE, LLC, as the Co-Agent, the Documentation Agent, and the Syndication Agent |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Its: | Authorized Signatory | |||
| SPIRET IV LOAN TRUST 2003-A, as a Lender |
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| By: | WILMINGTON TRUST COMPANY, not in its individual capacity but solely as trustee | |||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Its: | Senior Financial Services Officer | |||
| FIELD POINT I, LTD., as a Lender |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Its: | Authorized Signatory | |||
| FIELD POINT II, LTD., as a Lender |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Its: | Authorized Signatory | |||
| FIELD POINT III, LTD., as a Lender |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Its: | Authorized Signatory | |||
| FIELD POINT IV, LTD., as a Lender |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Its: | Authorized Signatory | |||
