EXHIBIT 99.2
EXECUTION VERSION
WAIVER UNDER AMENDED AND RESTATED CREDIT AGREEMENT
THIS WAIVER UNDER AMENDED AND RESTATED CREDIT AGREEMENT (this "Waiver") is
made and entered into as of October 10, 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, May 10, 2006, and
August 15, 2006, and as it may be further amended, modified, supplemented or
amended and restated from time to time, the "Credit Agreement");
WHEREAS, pursuant to the Credit Agreement, Borrowers were required to
deliver the audited financial statements for the fiscal year ended July 1, 2006
within 90 days of such fiscal year end (the "Financial Statement Delivery
Requirement");
WHEREAS, the Borrowers have failed to satisfy the Financial Statement
Delivery Requirement (the "Financial Statement Delivery Default"); and
WHEREAS, the Borrowers have requested, and the Agent, the Co-Agent and the
Lenders have agreed, to waive the Financial Statement Delivery Default subject
to the terms and conditions 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.
SECTION 2. WAIVERS UNDER CREDIT AGREEMENT.
2.01 WAIVER IN CONNECTION WITH FINANCIAL STATEMENT DELIVERY DEFAULT.
Subject to the satisfaction of the terms and conditions set forth herein, the
Agent, the Co-Agent and the Required Lenders hereby waive the Financial
Statement Delivery Default solely with respect to the failure to deliver the
audited financial statements for the fiscal year ended July 1, 2006; provided,
that the foregoing waiver shall be rescinded and no longer effective if
Administrative Borrower fails to deliver to the Lenders the audited financial
statements for the fiscal year ended July 1, 2006 on or prior to October 25,
2006.
SECTION 3. 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:
3.01 NO DEFAULT. At and as of the date of this Waiver and after giving
effect to this Waiver, no Default or Event of Default exists.
3.02 REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. At and as of the date
of this Waiver and both prior to (other than with respect to the Financial
Statement Delivery Default) 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.
3.03 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.
3.04 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 party or any Governmental Authority, or (d) violate any order, writ,
injunction, decree, judgment, ruling, law, statute, rule or regulation of any
Governmental Authority.
3.05 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,
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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 Waiver 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 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.
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 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 and remedies under the Credit Agreement, any other Loan Document
and applicable law in respect of any Default or Event of Default.
5.03 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.
5.04 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.
5.05 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
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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.
5.06 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.
5.07 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.
5.08 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.
5.09 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.
[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:
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Title:
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SALTON TOASTMASTER LOGISTICS LLC, a
Delaware limited liability company
By:
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Title:
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GUARANTORS:
HOME CREATIONS DIRECT, LTD.,
a Delaware corporation
By:
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Title:
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SONEX INTERNATIONAL CORPORATION, a
Delaware corporation
By:
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Title:
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[WAIVER UNDER SALTON CREDIT AGREEMENT]
ICEBOX, LLC, an Illinois limited
liability company
By:
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Title:
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FAMILY PRODUCTS INC., a Delaware
corporation
By:
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Title:
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SALTON HOLDINGS, INC., a Delaware
corporation
By:
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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:
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Its:
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SILVER POINT FINANCE, LLC, as the
Co-Agent, the Documentation Agent, and
the Syndication Agent
By:
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Its:
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[WAIVER UNDER SALTON CREDIT AGREEMENT]
SPIRET IV LOAN TRUST 2003-A, as a Lender
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
trustee
By:
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Its:
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FIELD POINT I, LTD., as a Lender
By:
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Its:
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FIELD POINT II, LTD., as a Lender
By:
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Its:
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FIELD POINT III, LTD., as a Lender
By:
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Its:
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FIELD POINT IV, LTD., as a Lender
By:
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Its:
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[WAIVER UNDER SALTON CREDIT AGREEMENT]
