EXHIBIT 99.5
EXECUTION COPY
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12-1/4% SENIOR SUBORDINATED NOTES DUE 2008
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FIRST SUPPLEMENT TO INDENTURE
DATED AS OF AUGUST 26, 2005
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SALTON, INC.,
AS ISSUER,
HOME CREATIONS DIRECT LTD.
TOASTMASTER INC.
SONEX INTERNATIONAL CORPORATION
SASAKI PRODUCTS COMPANY
AND
EACH NEWLY ACQUIRED OR
CREATED DOMESTIC SUBSIDIARY
OF ISSUER, AS GUARANTORS
AND
SUNTRUST BANK,
AS TRUSTEE
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FIRST SUPPLEMENT TO INDENTURE
This First Supplement to Indenture is dated as of August 26, 2005 by and
between Salton, Inc., a Delaware corporation (the "Company"), and SunTrust Bank,
a bank organized under the laws of the State of Georgia and having a corporate
trust office at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxx, Xxxxxxx 00000 (the
"Trustee"), as successor to Xxxxx Fargo Bank, National Association, with respect
to the Company's 12-1/4% Senior Subordinated Notes due 2008 (this "First
Supplement"). Capitalized terms used but not otherwise defined in this First
Supplement shall have the meanings ascribed to such terms in the Indenture
(hereinafter defined).
WHEREAS, the Company and the Trustee entered into that certain Indenture,
dated as of April 23, 2001 (as may be amended and supplemented from time to time
in accordance with its terms, the "Indenture");
WHEREAS, Section 9.2 of the Indenture provides that, when authorized by
resolutions of its Board of Directors, the Company and the Trustee may, with the
consent of the Holders of not less than a majority in principal amount of the
outstanding Notes, enter into one or more indentures supplemental to the
Indenture for the purpose of, among other things, changing in any manner or
eliminating any of the provisions of the Indenture or of modifying in any manner
the rights of the Holders, subject to certain exceptions set forth therein;
WHEREAS, Holders of a majority in principal amount of the Notes
outstanding have consented to this First Supplement;
WHEREAS, pursuant to Section 9.2 of the Indenture, the Trustee is
authorized to execute and deliver this First Supplement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree, for the equal and proportionate benefit
of all Holders of the Securities, as follows:
ARTICLE 1
INDENTURE AMENDMENTS
Section 1.01 Amendment to Article 4. Sections 4.2 through 4.9 of the
Indenture, inclusive, Sections 4.11 through 4.14 of the Indenture, inclusive,
and Sections 4.16 through 4.19 of the Indenture, inclusive, are hereby deleted
in their entirety and each Section is replaced with the following: "Reserved."
Section 1.02 Amendment to Article 5. Article 5 of the Indenture is
hereby deleted in its entirety and replaced with the following: "Reserved."
Section 1.03 Amendment to Article 6. Clauses (c) through (j) of
Section 6.1 of the Indenture, inclusive, are hereby deleted in their entirety
and each clause is replaced with the following: "Reserved."
Section 1.04 Amendment to Article 7. The second to last paragraph of
Section 7.7 is hereby deleted in its entirety and replaced with the following:
"When the Trustee incurs expenses or renders services (a) after an
Event of Default specified in Section 6.1(b) hereof occurs or (b)
after the Company or any of its Restricted Subsidiaries pursuant to
or within the meaning of Bankruptcy Law (i) commence a voluntary
case, (ii) consent to the entry of an order for relief against them
in an involuntary case, (iii) consent to the appointment of a
Custodian of them or for all or substantially all of their property,
(iv) make a general assignment for the benefit of their creditors,
or (v) generally are not paying their debts as they become due, the
expenses and the compensation for the services (including the fees
and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law."
ARTICLE 2
MISCELLANEOUS PROVISIONS
Section 2.01 Instruments to be Read Together. This First Supplement
is an indenture supplement to and an implementation of the Indenture, and said
Indenture and this Supplement shall henceforth be read together.
Section 2.02 Confirmation. The Indenture, as amended and
supplemented by this First Supplement, is in all respects confirmed and
preserved.
Section 2.03 Counterparts. This First Supplement may be executed in
any number of counterparts, each of which, when so executed, shall be deemed to
be an original, but all of which shall together constitute one and the same
instrument.
Section 2.04 Effectiveness. This First Supplement shall become
effective immediately upon its execution in accordance with the provisions of
Article 9 of the Indenture.
Section 2.05 GOVERNING LAW. THIS FIRST SUPPLEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK. THE COMPANY AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK, COUNTY OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS FIRST SUPPLEMENT.
Section 2.06 Disclaimer of Trustee's Responsibility. In executing
this First Supplement, the Trustee shall be entitled to all the privileges and
immunities afforded to the Trustee under the terms and conditions of the
Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplement
to Indenture to be duly executed as of the date first above written.
SALTON, INC.
By: __________________________________
Name: Xxxxx Xxxxxx
Its: Executive Vice President
Signature Page - Supplement to
April 23, 2001 Indenture
S-1
SUNTRUST BANK, AS TRUSTEE
By: __________________________________
Name: ________________________________
Its: _________________________________
Signature Page - Supplement to
April 23, 2001 Indenture
S-2
