MODIFICATION AGREEMENT
THIS
MODIFICATION AGREEMENT, dated as of August 6, 2007 (this “Agreement”), of
that certain Credit Agreement referenced below is by and among TEMPUR WORLD,
LLC, a Delaware limited liability company (as successor by merger to Tempur
World Holdings, LLC, a Delaware limited liability company, and Tempur-Pedic,
Inc., a Kentucky corporation), and TEMPUR PRODUCTION USA, INC., a Virginia
corporation, as Domestic Borrowers, XXX-FOAM ApS, a private limited liability
company existing under the laws of Denmark, as Foreign Borrower, TEMPUR-PEDIC
INTERNATIONAL INC., a Delaware corporation, and certain of its subsidiaries
and
affiliates, as Domestic Guarantors, TEMPUR WORLD HOLDINGS, S.L., a company
organized under the laws of Spain, and TEMPUR DANMARK A/S, a stock company
existing under the laws of Denmark, as Foreign Guarantors, the Lenders party
hereto, the L/C Issuers party hereto, BANK OF AMERICA, N.A., as Administrative
Agent and Domestic Collateral Agent, and NORDEA BANK DANMARK A/S, as Foreign
Collateral Agent. Capitalized terms used but not otherwise defined
herein shall have the meanings provided in the Credit Agreement.
W
I T N E
S S E T H
WHEREAS,
a credit facility was established in favor of the Borrowers pursuant to the
terms of that certain Credit Agreement, dated as of October 18, 2005 (as
amended, restated, extended, supplemented or otherwise modified, the “Credit
Agreement”), among the Borrowers named therein, the Guarantors named
therein, the Lenders party thereto, the Administrative Agent, the Domestic
Collateral Agent and the Foreign Collateral Agent;
WHEREAS,
pursuant to Section 2.01(h) of the Credit Agreement, the Domestic Borrowers
have
requested that the aggregate amount of commitments for Domestic Revolving Loans
be increased by $100 million from $490 million to $590 million; and
WHEREAS,
certain of the Domestic Revolving Lenders have agreed to increase their Domestic
Revolving Commitments pursuant to Section 2.01(h) of the Credit Agreement,
as
shown on Schedule 2.01 attached hereto, on the terms and conditions set
forth herein;
NOW,
THEREFORE, IN CONSIDERATION of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
1. Increase
in Domestic Revolving Commitments. Each of the Domestic Revolving
Lenders party to this Agreement agrees to provide Domestic Revolving Commitments
under the Credit Agreement as set forth on Schedule 2.01 attached
hereto. The Domestic Revolving Commitment Percentages are revised to
be as set forth on Schedule 2.01 attached hereto. Schedule
2.01 to the Credit Agreement is amended as set forth on Schedule 2.01
attached hereto.
2. Conditions
Precedent. This Agreement shall be effective immediately upon
receipt by the Administrative Agent of all of the following, each in form and
substance satisfactory to the Administrative Agent and the Domestic Revolving
Lenders party hereto:
(a) Executed
Agreement. Counterparts of this Agreement duly executed by the
Credit Parties and the Required Lenders;
(b) Secretary’s
Certificate. A duly executed certificate of a Responsible Officer
of each of the Domestic Borrowers and the Domestic Guarantors, attaching each
of
the following documents and certifying that each is true, correct and complete
and in full force and effect as of the date of this Agreement:
(i) Charter
Documents. Copies of its articles or certificate of incorporation
or formation or equivalent, certified to be true, correct and complete as of
a
recent date by the appropriate Governmental Authority of the jurisdiction of
its
organization or formation, unless a Responsible Officer certifies in the
secretary’s certificate that articles or certificate of incorporation or
formation previously delivered to the Administrative Agent at the closing of
Amendment No. 3 has not been amended, supplemented or otherwise modified and
remain in full force and effect as of the date hereof;
(ii) Bylaws. Copies
of its bylaws, operating agreement or partnership agreement, unless a
Responsible Officer certifies in the secretary’s certificate that the bylaws
previously delivered to the Administrative Agent at the closing of Amendment
No.
3 have not been amended, supplemented or otherwise modified and remain in full
force and effect as of the date hereof;
(iii) Resolutions. Copies
of its resolutions approving and adopting this Agreement, the transactions
contemplated herein, and authorizing the execution and delivery
hereof;
(iv) Incumbency. Incumbency
certificates identifying its Responsible Officers who are authorized to execute
this Agreement and related documents and to act on its behalf in connection
with
this Agreement and the Credit Documents, unless a Responsible Officer certifies
in the secretary’s certificate that the incumbency certificates previously
delivered to the Administrative Agent at the closing of Amendment No. 3 have
not
been amended, supplemented or otherwise modified and remain in full force and
effect as of the date hereof; and
(v) Good
Standing Certificates. A certificate of good standing or the
equivalent from its jurisdiction of organization or formation certified as
of a
recent date by the appropriate Governmental Authority.
(c) Legal
Opinions. Opinions of legal counsel to the Domestic Borrowers and
the Domestic Guarantors in form and substance acceptable to the Administrative
Agent.
(d) Fees
and Expenses. Payment of all fees and expenses (including fees
and expenses of counsel to the Administrative Agent) in connection with this
Agreement, including upfront fees, if any, in respect of the new commitments
so
established.
For
purposes of determining compliance with the conditions specified in this
Section 2, each of the Lenders that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with,
each
document or other matter required hereunder to be consented to or approved
by or
acceptable or satisfactory to a Lender, unless the Administrative Agent shall
have received notice from such Lender prior to the effectiveness of this
Agreement specifying its objection thereto.
3. Effectiveness
of Agreement. Upon execution and delivery of this Agreement, all
references to the Credit Agreement in each of the Credit Documents shall
hereafter mean the Credit Agreement as modified by this
Agreement. Except as specifically modified or amended hereby or
otherwise agreed in writing, the Credit Agreement and the other Credit Documents
(including, in each case, schedules and exhibits thereto) are hereby ratified
and confirmed and shall remain in full force and effect according to its
terms.
4. Representations
and Warranties; Defaults. Each of the Borrowers and the
Guarantors affirms the following:
(a) all
necessary action to authorize the execution, delivery and performance of this
Agreement has been taken;
(b) after
giving effect to this Agreement, the representations and warranties set forth
in
the Credit Agreement and the other Credit Documents are true and correct in
all
material respects as of the date hereof (except those which expressly relate
to
an earlier period);
(c) before
and after giving effect to this Agreement, no Default or Event of Default shall
exist; and
(d) the
liens and security interests created and granted in the Credit Documents remain
in full force and effect, and this Agreement is not intended to adversely affect
or impair such liens and security interests in any manner.
5. Guarantor
Acknowledgments.
(a) Each
Domestic Guarantor hereby (i) acknowledges and consents to all of the terms
and
conditions of this Agreement, (ii) reaffirms that, jointly and severally
together with the other Domestic Guarantors,
it guarantees
the prompt payment and performance of their obligations as provided in Article
IV of the Credit Agreement and (iii) acknowledges and agrees that the such
obligations will include any Obligations with respect to
or
resulting from the increase in the Aggregate Domestic Revolving Committed Amount
as provided hereunder.
(b) Each
Foreign Guarantor hereby (i) acknowledges and consents to all of the terms
and
conditions of this Agreement and (ii) reaffirms that, jointly and severally
together with the other Foreign Guarantors, it
guarantees
the prompt payment and performance of their obligations as provided in Article
IV of the Credit Agreement.
6. Domestic
Revolving Lenders’ Representation and Warranties. Each of the
Domestic Revolving Lenders (including the New Lenders) party to this Agreement
represents and warrants that it has full power and authority, and has taken
all
action necessary, to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
7. Full
Force and Effect. Except as modified hereby, all of the terms and
provisions of the Credit Agreement and the other Credit Documents (including
schedules and exhibits thereto) shall remain in full force and
effect.
8. Counterparts. This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more
than
one such counterpart. Delivery by any party hereto of an executed
counterpart of this Agreement by facsimile shall be effective as such party’s
original executed counterpart and shall constitute a representation that such
party’s original executed counterpart will be delivered.
9. Fees
and Expenses. Pursuant to Section 11.04(a) of the Credit
Agreement, the Domestic Borrowers shall pay all reasonable costs and expenses
of
the Administrative Agent in connection with the preparation, execution and
delivery of this Agreement, including the reasonable fees and expenses of Xxxxx
& Xxx Xxxxx, PLLC.
10. Prepayment
of Loans; Break-Funding Costs. The Domestic Borrowers shall
prepay any Loans outstanding on the date that the increase in the Aggregate
Domestic Revolving Committed Amount becomes effective (and pay any additional
amounts required pursuant to Section 3.05 of the Credit Agreement) to the extent
necessary to keep the outstanding Loans ratable with any revised Domestic
Revolving Commitment Percentages arising from any nonratable increase in the
Domestic Revolving Commitments.
11. Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
IN
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Agreement to be duly executed and delivered as of the date first above
written.
DOMESTIC BORROWER:
TEMPUR WORLD, LLC (as successor by merger to Tempur World Holdings, LLC, a Deleware limited liability company, and Tempur-Pedic. Inc., a Kentucky corporation), | |||
a Delaware limited liability company | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
Xxxxxxx X. Xxxxx | |||
Treasurer and Assistant Secretary |
TEMPUR PRODUCTION USA, INC, | |||
a Xxxxxxx corporation | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
Xxxxxxx X. Xxxxx | |||
Treasurer |
FOREIGN
BORROWER:
XXX-FOAM ApS, | |||
a private limited liability company existing under the laws of Denmark | |||
|
By:
|
/s/ Xxxx X. Xxxxxxxx | |
Xxxx X. Xxxxxxxx | |||
Attorney in Fact |
DOMESTIC
GUARANTORS:
TEMPUR-PEDIC INTERNATIONAL INC., | |||
a Delaware corporation | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
Xxxxxxx X. Xxxxx | |||
Treasurer and Assistant Secretary |
TEMPUR-PEDIC NORTH AMERICA, INC., | |||
a Delaware corporation (formerly known as Tempur-Pedic Retail, Inc. and as Tempur-Pedic NA, Inc. and successor in interest to Tempur-Pedic Medical, Inc. and Tempur-Pedic, Direct Response, Inc.) | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
Xxxxxxx X. Xxxxx | |||
Treasurer and Secretary |
XXXX SLEEP TECHNOLOGIES, INC., | |||
a Delaware corporation | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
Xxxxxxx X. Xxxxx | |||
Treasurer and Secretary |
TEMPUR-PEDIC TECHNOLOGIES, INC., | |||
a Delaware corporation | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
Xxxxxxx X. Xxxxx | |||
Treasurer and Secretary |
FOREIGN
GUARANTORS:
TEMPUR WORLD HOLDINGS, S.L., | |||
a company organized under the laws of Spain | |||
|
By:
|
/s/ Xxxx X. Xxxxxxxx | |
Xxxx X. Xxxxxxxx | |||
Director |
TEMPUR DANMARK A/S, | |||
a stock company existing under the laws of Denmark | |||
|
By:
|
/s/ Xxxx X. Xxxxxxxx | |
Xxxx X. Xxxxxxxx | |||
Attorney in Fact |
ADMINISTRATIVE
AGENT:
BANK OF AMERICA, N.A., | |||
as Administrative Agent and Domestic Collateral Agent | |||
|
By:
|
/s/ Xxxx Xxxxxxx | |
Xxxx Xxxxxxx | |||
Assistant Vice President |
LENDERS:
BANK OF AMERICA, N.A., | |||
as Domestic L/C Issuer and as a Lender | |||
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxx, Xx. | |
Xxxxxx X. Xxxxxxxxx, Xx. | |||
Senior Vice President |
NORDEA BANK DANMARK A/S, | ||||
as Foreign L/C Issuer, Foreign Swingline Lender, Foreign Collateral Agent and a Lender | ||||
/s/
Xxxx
Xxxxxxxxxxxx
|
/s/
Xxx
Xxxxxxx
|
|||
Xxxx
Xxxxxxxxxxxx
|
Xxx
Xxxxxxx
|
|||
Head
of
Corporate
|
Region
Branch
Manager
|
FIFTH THIRD BANK | |||
as Lender and Domestic Swingline Lender | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |
Xxxxxxx X. Xxxxxxxxx | |||
Vice President |
SUNTRUST BANK | |||
as a Lender | |||
|
By:
|
/s/ Xxxxx X. Xxxx | |
Xxxxx X. Xxxx | |||
Managing Director |
XXXXX FARGO BANK, N.A., | |||
as a Lender | |||
|
By:
|
/s/ Xxxxx Xxxxxx | |
Xxxxx Xxxxxx | |||
Vice President |
REGIONS BANK | |||
as a Lender | |||
|
By:
|
/s/ Xxxxx Xxxxxx | |
Xxxxx Xxxxxx | |||
Senior Vice President |
NATIONAL CITY BANK, | |||
as a Lender | |||
|
By:
|
/s/ Xxxxx X. Xxxx | |
Xxxxx X. Xxxx | |||
Senior Vice President |