WAIVER, CONSENT FORBEARANCE AND SEVENTEENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 99.11
Execution Version
THIS WAIVER, CONSENT, FORBEARANCE AND SEVENTEENTH AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT (this “Seventeenth Amendment”) is made and entered into as of October 1, 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”), ▇▇▇▇▇ 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”). As
provided in Section 1 below, capitalized terms used in this Agreement and not otherwise defined
herein have the meanings set forth in the Credit Agreement referred to in Recital A. below.
RECITALS:
A. The Lenders, the Agent, the Co-Agent and the Borrowers 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, as of February 12, 2007, as of April 13, 2007, as of June 28, 2007, as of July
30, 2007, as of July 31, 2007, as of August 6, 2007, as of August 8, 2007 and as it may be further
amended, modified, supplemented or amended and restated from time to time, the “Credit
Agreement”).
▇. ▇▇▇▇▇▇, Inc., SFP Merger Sub, Inc. and APN Holding Company, Inc., a wholly owned
subsidiary of Harbinger Capital Partners Master Fund I, Ltd. and Harbinger Capital Partners Special
Situations Fund, L.P. (the “Harbinger Entities”), are, concurrently with the execution and
delivery of this Seventeenth Amendment, executing and delivering an Agreement and Plan of Merger
dated as of, and as in effect on, the date hereof (“Merger Agreement”).
C. On or after November 10, 2007, the component of the Borrowing Base described in clause (D)
of the definition thereof will be reduced to zero, likely resulting in an Overadvance (as defined
below). Pursuant to the terms of the Credit Agreement, the Borrowers are obligated to repay the
Obligations in an amount equal to the sum of (i) principal amount of the Overadvance; (ii) accrued
and unpaid interest thereon; and (iii) funding losses, if any, as required by Section 4.4 of the
Credit Agreement.
D. Concurrently with the execution and delivery of the Seventeenth Amendment, the Borrower
Parties, Co-Agent and the Harbinger Entities are entering into a Loan Purchase Agreement (attached
hereto as Exhibit A (the “Loan Purchase Agreement”). The Loan Purchase Agreement provides
that upon the occurrence of certain events and according to certain terms, the Harbinger Entities
agree to buy certain Loans and Obligations under the Credit Agreement from Co-Agent.
E. Concurrently with the execution and delivery of this Seventeenth Amendment, Borrowers and
the Harbinger Entities are entering into a Reimbursement and Credit Agreement (as defined below)
which shall govern the terms and conditions of certain loans and obligations purchased under the
Loan Purchase Agreement (as defined below) and provides for the payment of certain fees and
expenses as set forth therein. The Harbinger Entities are also entering into an Intercreditor
Agreement (“Junior Intercreditor Agreement”) with the Second Lien Agent.
F. Certain Defaults and Events of Default have occurred and are continuing under Sections
3.1(c)(iv), 7.33 and 7.34 of the Credit Agreement (“Existing Events of Defaults”). The
Borrower Parties have requested and the Lenders have agreed to forbear from exercising remedies
with respect to the Existing Events of Defaults on the terms and conditions set forth herein.
G. In order to consummate the transactions contemplated by these Recitals, the Borrowers have
requested, and the Agent, Co-Agent and the Lenders have agreed, to certain amendments to 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 (as amended
hereby).
Section 2. Amendments to the Credit Agreement. The Credit Agreement is hereby
amended, effective as of the date this Seventeenth Amendment becomes effective in
accordance with Section 4 hereof, as follows:
2.01 Additional Definitions Annex A to the Credit Agreement is hereby amended by
adding the following definitions in the correct alphabetical order:
(a) “Amended and Restated Intercreditor Agreement” means the Amended and Restated
Intercreditor Agreement dated as of October 1, 2007 among Harbinger Capital Partners Master Fund I,
Ltd., Harbinger Capital Partners Special Situations Fund, L.P., the Second Lien Agent, the Co-Agent
and the Agent, as amended, modified, supplemented or restated from time to time.
(b) “Loan Purchase Agreement” means the Loan Purchase Agreement dated as of October 1,
2007 among Borrower Parties, Co-Agent, Harbinger Capital Partners Master Fund I, Ltd. and Harbinger
Capital Partners Special Situations Fund, L.P., and all exhibits and schedules thereto.
(c) “Merger Agreement means the Agreement and Plan of Merger dated as of October 1,
2007 among Salton, Inc., SFP Merger Sub, Inc. and APN Holding Company, Inc. as in effect on the
date hereof.
(d) “Merger Agreement Termination” means the Merger Agreement expires or is terminated
or is terminable by any party thereto.
(e) “Overadvance” means an amount equal to the excess of the Aggregate Outstandings
over the lower of the Borrowing Base and the Maximum Amount.
(f) “Overadvance Amount” means an amount equal to the sum of (i) principal amount of
the Overadvance; (ii) accrued and unpaid interest thereon and (iii) funding losses, if any, as
required by Section 4.4 hereof.
(g) “Reimbursement and Credit Agreement” means the Reimbursement and Senior Secured
Credit Agreement dated October 1, 2007 among Harbinger Capital Partners Master Fund I, Ltd.,
Harbinger Capital Partners Special Situations Fund, L.P., as the Lenders, Harbinger Capital
Partners Master Fund I, Ltd., as Agent, and Salton, Inc., as in effect on such date.
(h) “Reimbursement Loan Documents” means the “Loan Documents” as defined in the
Reimbursement and Credit Agreement.
(i) “Stretch Loans” means loans made available pursuant to clause (a)(D) of the
definition of Borrowing Base
2.02 Amended Definitions. Annex A to the Credit Agreement is hereby amended by:
(a) 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) the Stretch Amount;
provided, that, notwithstanding the foregoing, on and after November 10, 2007, the
result of this clause (D) shall be zero. The “Stretch Amount” shall be
$52,289,509.48.”
(b) deleting the definition of “Intercreditor Agreement” in its entirety and inserting
the following in lieu thereof:
“Intercreditor Agreement” means, prior to the Effective Date (as defined in
the Amended and Restated Intercreditor Agreement), that certain Intercreditor
Agreement, dated as August 26, 2005, among the Co-Agent and the Agent, on the one
hand, and the Second Lien Agent, on the other hand, as amended, modified,
supplemented or restated from time to time, and after the Effective Date (as defined
in the Amended and Restated Intercreditor), the Amended and Restated Intercreditor
Agreement.
(c) adding the following sentence to the end of the definition of “Loan Documents”:
“Loan Documents shall also include the Loan Purchase Agreement.”
(d) deleting the definition of “Maximum Amount” and in its entirety and inserting the
following in lieu thereof:
“Maximum Amount” means a principal amount of Loans made and Letters of
Credit issued (or guaranteed) under this Agreement equal to $187,500,000 minus the
principal amount of Stretch Loans purchased pursuant to the Loan Purchase
Agreement.”
(e) deleting the period at the end of the definition of “Permitted Liens”, inserting
the word ‘and” in lieu thereof and adding the following clause (k) thereto:
“(k) Liens, subject to the Intercreditor Agreement, to secure obligations and
liabilities arising under the Reimbursement and Credit Agreement and the
Reimbursement Loan Documents.”
2.03 Amendment of Section 1.2(k). Section 1.2 of the Credit Agreement is hereby
amended by deleting Section 1.2(k) in its entirety.
2.04 Amendment of 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:
“(iv) If the aggregate principal amount of the Loans exceeds the lesser of the
Borrowing Base and the Maximum Amount, the Borrowers shall prepay the outstanding
principal amount of the Loans in an amount equal to such excess.”
2.05 Addition of Section 3.9. The Credit Agreement is hereby amended by adding the
following Section 3.9 immediately following Section 3.8:
“Section 3.9. Loan Purchase Agreement. If at any time any Lender sells any
Loans pursuant Section 1(a) of the Loan Purchase Agreement, the Loans so purchased
shall automatically and without any further action cease to be governed by the terms
and conditions of this Agreement and shall be governed by and subject to the terms
of the Reimbursement and Credit Agreement. The purchaser of such Loans shall not be
a “Lender” hereunder and shall have no rights or obligations hereunder.”
2.06 Amendment of Section 7.12. Section 7.12 of the Credit Agreement is hereby
amended by deleting it in its entirety and inserting the following in lieu thereof:
“Section 7.12 Guaranties. No Loan party shall make, issue, or become
liable on any Guaranty, except: (a) Guaranties of the Obligations in favor of the
Agent, (b) Guaranties by the Parent of Debt permitted by Section 7.13, trade
payables and real estate operating leases, (c) Guaranties of Debt by Guarantors
permitted by Sections 7.13 (e), (k) or (m).”
2.07 Amendment of Section 7.13. Section 7.13 of the Credit Agreement is hereby
amended by deleting it in its entirety and inserting the following in lieu thereof:
“Section 7.13. Debt. No Loan Party shall incur or maintain any Debt, other
than: (a) the Obligations; (b) Debt described on Schedule 7.13; (c) Debt of Salton
Holdings Limited and Salton Europe Limited, under the Facility Agreement dated 23rd
December 2005 among those entities, the lender parties listed therein, Burdale
Financial Limited as agent and security trustee, as amended to the date hereof not
exceeding the principal amount outstanding set forth on Annex C, Section II during
the corresponding periods set forth on Annex C, Section II; (d) [Reserved]; (e) the
Senior Notes in a principal amount equal to the principal amount outstanding on
August 8,2007 less any repayments of principal of the Senior Notes after such date;
(f) the Intercompany Account so long as such Debt is to the Subordination Agreement
and, provided that, from and after May 11, 2005 (i) no Borrower Party shall make any
Investment in a Foreign Subsidiary and (ii) no Foreign Subsidiary shall make any
Investment in another Foreign Subsidiary; (g) Debt in respect of foreign currency
hedging agreements with aggregate notional amounts not greater than $2,000,000 at
any time; (h) [Reserved]; (i) [Reserved]; (j) [Reserved]: (k) the Second Lien Term
Loan in a principal amount outstanding on August 8, 2007 less any repayments of
principal of the Second Lien Term Loan after such date; (l) [Reserved]; and (m) Debt
incurred under the Reimbursement and Credit Agreement to fund the purchase of Loans
under Section 1(a) of the Loan Purchase Agreement in a principal amount not
exceeding the Purchase Price (as defined in the Loan Purchase Agreement) of such
Loans, plus fees not to exceed $5,000,000 and expenses reimbursable thereunder.
Notwithstanding anything to the contrary contained herein, the Parent shall not,
directly or indirectly, enter into any amendment or modification of the documents
evidencing the Debt permitted under clause (g) above that is any manner adverse to
the Parent, any Subsidiary, the Agent, the Co-agent or any Lender. Notwithstanding
anything to the contrary contained herein, no Borrower
Party shall, directly or indirectly, enter into any amendment or modification of the
documents evidencing the Debt permitted under clauses (e), (f), (k) or (m) above or
any other Second Lien Loan Document or any other Reimbursement Loan Document.
2.08 Amendment to Schedule 7.33. Paragraph H to Schedule 7.33 of the Credit Agreement
is hereby amended by deleting it in its entirety and inserting the following in lieu thereof:
“The Borrower Parties shall not use any proceeds of the Loans to make any payments
of principal, interest, fees or other amounts on or with respect to the Senior
Notes, the Second Lien Term Loans or obligations under the Reimbursment and Credit
Agreement; provided, however, the Borrower Parties may use proceeds of the Loans to
make (A) the scheduled payments of interest on: (i) the Senior Notes due in October
2007, (ii) the Second Lien Term Loan due in January, 2008, and (iii) the principal
amount of Debt outstanding under the Reimbursement and Credit Agreement (to extent
allowed under Section 7.13) that accrues after the purchase of Obligations under the
Loan Purchase Agreement and (B) in the case of each of (A) (i), (ii) and (iii)
above, to the extent not paid on the scheduled payment date, all interest accruing
after such scheduled payment date up to one month’s additional interest; provided in
all cases, that pro forma, after giving effect to each and every such payment,
Availability is at least $1.”
2.09 Addition of Section 7.36. The Credit Agreement is hereby amended by adding
Section 7.36 as follows immediately after Section 7.35:
“The Borrower Parties shall not and shall not allow any Subsidiary of the Borrower
Parties to waive any provision of the Merger Agreement or amend, supplement or
otherwise modify the Merger Agreement.
2.10 Addition of Section 7.37. The Credit Agreement is hereby amended by adding
Section 7.37 as follows immediately after Section 7.36:
“(a) The Borrower Parties shall cause the liabilities owed by Salton Europe Ltd.
and/or its Subsidiaries to Salton Hong Kong, Ltd that are secured by any assets of
Salton Europe Ltd and/or its Subsidiaries, whether by grant of a lien, retention of
title or other means, to not exceed, during the periods set forth on Annex C,
Section I, the corresponding amounts for such periods set forth on Annex C; Section
I; to the extent so secured such liabilities shall be secured solely by accounts
receivable and inventory of Salton Europe Ltd. on a second lien basis, junior to the
lien securing the obligations described in Section 7.13 (c); and except as
so permitted and notwithstanding, anything to the contrary in the Loan Documents,
Salton Hong Kong, Ltd. shall have no Liens on any asset of Salton, Inc. or any of
its Subsidiaries;
(b) The Borrower Parties shall cause Salton Australia, Pty. Ltd. and/or its
Subsidiaries to assume or guarantee up to $15,000,000 principal amount of
Revolving Loans or other Obligations on terms and conditions reasonably satisfactory
to the Agent and Co-Agent and to secure its obligations under such assumption or
guarantee by a first priority perfected lien in all of its and its Subsidiaries’
assets and that in the event Salton Australia, Pty. Ltd. and/or its Subsidiaries
assumes any of the Revolving Loans or other Obligations, the Interest Rate
applicable to such Revolving Loans or other Obligations shall be at an interest rate
determined by the Co-Agent to be commercially reasonable in the Australian market
for similar credits and the Interest Rate on the Revolving Loans, Term Loan and
other Obligations that are not so assumed shall be adjusted so that the weighted
average Interest Rate (as determined by the Co-Agent) on the Obligations shall be
the same as the Interest Rate thereon would be if no Revolving Loans or other
Obligations were so assumed.”
2.11 Amendment of Section 9.1. Section 9.1 of the Credit Agreement is hereby amended:
(a) by deleting clause (a) thereof in its entirety and inserting the following in lieu
thereof:
“(a) any failure by the Borrowers to pay the principal of, or interest or premium
on, any of the Obligations or any fee or other amount owing hereunder when due,
whether upon demand or otherwise; provided, however, on and after November 10, 2007,
if (i) the Co-Agent is entitled to exercise the Stretch Loan Put Notice (as defined
in the Loan Purchase Agreement) as set forth in Section 3(a) of the Loan Purchase
Agreement, (ii) the Overadvance Amount is less than or equal to principal amount of
Stretch Loans subject to such put option, and (iii) none of Harbinger Capital
Partners Master Fund I, Ltd. or Harbinger Capital Partners Special Situations Fund,
L.P. have breached any of their obligations under the Loan Purchase Agreement, the
failure of the Borrowers to pay, when due, the Overadvance Amount shall not
constitute an Event of Default under this clause (a) unless the Co-Agent has
attempted to, or is enjoined or otherwise legally prevented from exercising its
rights under the Loan Purchase Agreement;”
(b) by deleting the word “and” at the end of clause (r), redesignating clause (s) as clause
(v) and inserting new clauses (s), (t) and (u) as follows:
“(s) there occurs any Default or Event of Default under, and as such terms are
defined in, the Reimbursement and Credit Agreement;
(t) any party to the Merger Agreement has, or asserts, the right to terminate the
Merger Agreement or the Merger Agreement is terminated;
(u) if, for any reason, the Loans purchased pursuant to Section 1(a) of the Loan
Purchase Agreement are not governed by and subject to the terms of the Reimbursement
and Credit Agreement or if the Reimbursement and Credit Agreement is ineffective,
invalid or unenforceable in any material respect; “
2.12 Amendment of Section 11.2. Section 11.2 of the Credit Agreement is hereby
amended by adding clause (i) as follows immediately after clause (h):
“(i) Notwithstanding any other provision of this Agreement, Loans and Obligations may be
assigned pursuant to the Loan Purchase Agreement.”
Section 3. Representations and Warranties. In order to induce the Agent, the
Co-Agent and the Lenders to enter into this Seventeenth Amendment, the Borrower Parties
hereby represent and warrant that:
3.01 Representations and Warranties True and Correct. At and as of the date of this
Seventeenth Amendment and both prior to and after giving effect to this Seventeenth Amendment, each
of the representations and warranties contained in the Credit Agreement and other Loan Documents is
true and correct in all material respects.
3.02 Corporate Power, Etc. The Borrower Parties (a) have all requisite corporate
power and authority to execute and deliver this Seventeenth 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 Seventeenth Amendment and the consummation of the
transactions contemplated hereby.
3.03 No Conflict. Neither the execution and delivery of this Seventeenth 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
Authority, or (d) violate any order, writ, injunction, decree, judgment, ruling, law, statute, rule
or regulation of any Governmental Authority.
3.04 Binding Effect. This Seventeenth 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 4. Waiver and Consent. Subject to the satisfaction of the terms and
conditions herein:
4.01 Waiver. Any Event of Default resulting from the inclusion of a qualification
relating to going concerns in the report by the Parent’s independent auditors the accompanies the
audited statements as of and for the period ending June 30, 2007 is hereby waived.
4.02 Consent. The Agent, Co-Agent and Lenders hereby consent to the execution and
delivery by the Borrower Parties of the Loan Purchase Agreement, the Amended and Restated
Intercreditor Agreement, the Merger Agreement, the Waiver, Consent and First Amendment to the
Second Lien Credit Agreement dated the date hereof, the Reimbursement and Credit Agreement and the
Reimbursement Loan Documents; provided, however, that such consent shall not be deemed a waiver of
any Default or Event of Default resulting from the consummation of the merger pursuant to the
Merger Agreement or any amendments or modifications to the foregoing documents.
Section 5. Forbearance. The Lenders hereby agree to forbear from exercising
remedies under Section 9.2 of the Credit Agreement with respect to the Existing Events of
Default; provided, the Borrower Parties satisfy each of the following conditions and no
such condition has not been satisfied.
5.01 Foreign Pledges. The Borrower Parties shall have delivered to the Agent and
Co-Agent:
(a) On or before October 30, 2007, Foreign Pledge Agreements, substantially
similar to those Foreign Pledge Agreements previously delivered or reasonably
acceptable to Co-Agent, pledging as Collateral 100% of the issued and outstanding
equity of (i) Salton International C.V., (ii) Salton UK (iii) Salton Hong Kong,
Ltd., (iv) Salton Sarl, (v) Salton Australia, Pty. Ltd, (vi) Toastmaster de Mexico
SA, and (vii) Salton Brazil Limitada; and
(b) Within 5 days after written request by the Agent or the Co-Agent, Foreign
Pledge Agreements pledging as Collateral 100% of the issued and outstanding equity
of any other Subsidiary of Salton, Inc. as specified in such request;
5.02 Strategic Plan. On or prior to the date the Merger Agreement is not in full
force and effect, is terminated or any party thereto has, or asserts, the right to terminate the
Merger Agreement, the Borrower Parties shall have delivered to the Agent and the Co-Agent the
comprehensive strategic plan described in Paragraph C of Schedule 7.33 of the Credit Agreement;
5.03 Blocked Accounts. On or prior to October 15, 2007 the Borrower Parties shall
have delivered to the Agent and the Co-Agent the control agreements described in Paragraph A of
Schedule 7.33 of the Credit Agreement with respect to the ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Accounts described
therein;
5.04 Australian Guaranty. On or before January 30, 2008, the Borrower Parties shall
have caused Salton Australia, Pty. Ltd. and/or its Subsidiaries to assume or guarantee up to
$15,000,000 principal amount of Revolving Loans or other Obligations on terms and conditions
reasonably satisfactory to the Agent and Co-Agent and to secure its (or such Subsidiaries’)
obligations under such assumption or guarantee by a first priority perfected lien in all of its and
its Subsidiaries’ assets as described in Section 7.37(b);
5.05 Chief Restructuring Officer. On or before the date that is 14 days from date of
delivery of a written request from the Co-Agent, Salton Inc. shall have appointed a chief
restructuring officer reasonably acceptable, and on terms reasonably acceptable, to the Co-Agent.
5.06 SEC Report. On or prior to October 15, 2007 the Parent shall have filed its Form
10-K with the SEC and such Form 10-K shall comply in all material respects with all Requirements of
Law.
Section 6. Conditions. This Seventeenth 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 4 (such date, the “Effective Date”):
6.01 Execution of the Seventeenth Amendment. Each of the parties hereto shall have
executed an original counterpart of this Seventeenth 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 3 hereof shall be true and correct.
6.03 Related Transactions.
(a) The Merger Agreement, in form and substance satisfactory to the Co-Agent, shall have bee
executed and delivered by the parties thereto and shall be in full force and effect without breach
by any party of its obligations thereunder;
(b) The Reimbursement and Credit Agreement and the Junior Intercreditor Agreement, each in
form and substance, satisfactory to the Co-Agent, shall have been executed and delivered by the
parties thereto, all conditions precedent thereto shall have been satisfied or waived and no
default or event of default thereunder shall have occurred and be continuing; and
(c) The Intercreditor Agreement shall have been executed and delivered by the parties thereto
and shall be in full force and effect without breach by any party of its obligations thereunder.
(d) The Loan Purchase Agreement shall have been executed and delivered by the parties thereto
and shall be in full force and effect without breach by any party of its obligations thereunder.
6.04 Document Deliveries. The Co-Agent shall have received:
(a) copies of the Merger Agreement, the Loan Purchase Agreement, Reimbursement and Credit
Agreement, all Reimbursement Loan Documents, the Junior Intercreditor Agreement (as defined in the
Intercreditor Agreement); and all other agreements related to any of the foregoing, certified by a
Responsible Office of the Administrative Borrower as a true, complete and correct;
(b) copies of resolutions of the board of directors (and shareholders, if necessary) or other
governing body of each party, the agreements described in Section 4.03 and this Seventeenth
Amendment, each certified by an officer reasonably acceptable to the Agent and Co-Agent of such
party authorizing the execution, delivery and performance of such agreements;
(c) evidence reasonably satisfactory to the Agent and Co-Agent that the Existing Junior Lien
Agent and the New Junior Lien Agent (as such terms are defined in the Intercreditor Agreement) are
authorized to enter into such Intercreditor Agreement) on behalf of the Existing Junior Lenders and
the New Junior Lenders, respectively (as such terms are defined in the Intercreditor Agreement; and
(d) 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.
6.05 Payment of Fees. All fees, costs, expense reimbursements and amounts due and
payable to the Agent or the Co-Agent by APN Holding Company, Inc. , the Borrowers and the
Guarantors shall have been paid in full.
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 Seventeenth Amendment is limited as
specified and the execution, delivery and effectiveness of this Seventeenth 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 Seventeenth 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 not
expressly waived herein.
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 Seventeenth Amendment and (ii) all of
the terms and provisions of this Seventeenth 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, “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 SEVENTEENTH 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 Seventeenth 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 Seventeenth Amendment in any
jurisdiction.
7.06 Overadvance. Agent acknowledges that the full amount of the Overadvance Amount
is held by the Co-Agent.
7.07 Counterparts. This Seventeenth 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 Seventeenth 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.
7.08 Headings. Section headings in this Seventeenth Amendment are included herein for
convenience of reference only and shall not constitute a part of this Seventeenth Amendment for any
other purpose.
7.09 Binding Effect; Assignment. This Seventeenth 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 Seventeenth Amendment shall not be assigned or
delegated without the prior written consent of the Agent, the Co-Agent and the Lenders.
7.10 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 Seventeenth Amendment and any document required to be
furnished herewith.
7.11 Integration. This Seventeenth 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]
Execution Version
IN WITNESS WHEREOF, the parties hereto have caused this Seventeenth 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/ ▇▇▇▇▇▇▇ ▇▇▇▇
|
|||||
| Title: | Interim Chief Executive Officer and Chief Financial Officer |
|||||
| TOASTMASTER INC., a Missouri corporation | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
|
|||||
| Title: | Interim Chief Executive Officer and Chief Financial Officer |
|||||
| SALTON TOASTMASTER LOGISTICS LLC, a Delaware limited liability company | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
|
|||||
| Title: | Interim Chief Executive Officer and Chief Financial Officer |
|||||
| GUARANTORS: | ||||||
| HOME CREATIONS DIRECT, LTD., | ||||||
| a Delaware corporation | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
|
|||||
| Title: | Interim Chief Executive Officer and Chief Financial Officer |
|||||
| SONEX INTERNATIONAL CORPORATION, a Delaware corporation | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
|
|||||
| Title: | Interim Chief Executive Officer and Chief Financial Officer |
|||||
| ICEBOX, LLC, an Illinois limited liability company | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
|
|||||
| Title: | Interim Chief Executive Officer and Chief Financial Officer | |||||
[17TH AMENDMENT SIGNATURE PAGE]
| FAMILY PRODUCTS INC., a Delaware corporation | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
|
|||||
| Title: | Interim Chief Executive Officer and Chief Financial Officer |
|||||
| SALTON HOLDINGS, INC., a Delaware corporation | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
|
|||||
| Title: | Interim Chief Executive Officer and Chief Financial Officer |
|||||
| AGENT, CO-AGENT AND LENDERS: | ||||||
| ▇▇▇▇▇ FARGO FOOTHILL, INC. | ||||||
| as the Administrative Agent, the Collateral Agent and as a Lender | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|||||
| Its: | ||||||
| SILVER POINT FINANCE, LLC, as the Co-Agent, the Documentation Agent, and the Syndication Agent | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|||||
| Its: | ||||||
[17TH AMENDMENT SIGNATURE PAGE]
| SPIRET IV LOAN TRUST 2003-A, as a Lender | ||||||
| By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as trustee | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||||
| Its: | Assistant Vice President | |||||
| FIELD POINT I, LTD., as a Lender | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|||||
| Its: | ||||||
| FIELD POINT II, LTD., as a Lender | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|||||
| Its: | ||||||
| FIELD POINT III, LTD., as a Lender | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|||||
| Its: | ||||||
| FIELD POINT IV, LTD., as a Lender | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|||||
| Its: | ||||||
| SPCP GROUP, L.L.C., as a Lender | ||||||
| By: | ||||||
| Its: | ||||||
[17TH AMENDMENT SIGNATURE PAGE]