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EXHIBIT 10.51
PREPARED BY AND RETURN TO:
XXXXX & XXX XXXXX, PLLC (JWG)
NATIONSBANK CORPORATE CENTER
000 XXXXX XXXXX XXXXXX, 00XX XXXXX
XXXXXXXXX, XXXXX XXXXXXXX 00000-0000
FIRST AMENDMENT TO MORTGAGE AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO MORTGAGE AND SECURITY AGREEMENT (the "First
Amendment") dated as of November 5, 1999, is by and between
PALM BEACH BEDDING COMPANY, a Florida corporation, having an address of
0000 Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000-0000 (the "Grantor"); and
FIRST UNION NATIONAL BANK, a national banking association headquartered
in Charlotte, North Carolina, in its capacity as Administrative Agent (in such
capacity, the "Agent") for the lenders from time to time party to the Restated
Credit Agreement described herein, having an address of 000 Xxxxx Xxxxxxx
Xxxxxx, Xxx Xxxxx Xxxxx Xxxxxx, XX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, (the
"Lenders").
W I T N E S S E T H:
WHEREAS, the Grantor, a wholly owned subsidiary of the Borrower
(hereinafter defined), has previously executed a Mortgage and Security Agreement
dated as of the 18th day of May, 1999 in favor of the Agent, as Mortgagee,
recorded in the public records of Palm Beach County, Florida in Official Record
Book 11129, Page 688 on May 24, 1999 (the "Mortgage"), in connection with loans
and extensions of credit to Sleepmaster, L.L.C., a New Jersey limited liability
company (the "Borrower") pursuant to the terms of the Credit Agreement, as
referenced and defined in the Mortgage;
NOTICE TO RECORDER: PURSUANT TO SECTION 201.08, FLORIDA STATUTES (1999), THIS
INSTRUMENT DOES NOT INCREASE THE $8,000,000 LIMITATION ON THE MORTGAGEE'S
RECOVERY CONTAINED IN THE MORTGAGE BETWEEN THE PARTIES HERETO RECORDED IN BOOK
11129, PAGE 688 ON MAY 24, 1999 AND NO DOCUMENTARY STAMP TAX OR INTANGIBLE TAX
IS DUE ON THIS INSTRUMENT.
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WHEREAS, the Mortgage encumbered the land described on Exhibit A
attached hereto and made a part hereof;
WHEREAS, the parties to the Credit Agreement have agreed to enter into
that certain Amended and Restated Credit Agreement of even date herewith (the
"Restated Credit Agreement") pursuant to which the credit facilities extended to
the Borrower will be increased to an amount up to $70,000,000.00 (collectively,
the "Credit Facilities").
WHEREAS, the Grantor and the Agent have agreed to amend the Mortgage as
set forth herein and all defined terms used herein but not defined herein shall
have the meaning given to them in the Mortgage.
AGREEMENT:
NOW, THEREFORE IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Limitation on Recovery. The limitation on recovery of
$8,000,000 set forth in the Mortgage is hereby incorporated by reference and
shall apply to the Mortgage as amended hereby.
SECTION 2. Indebtedness. (a) The reference in the first recital of the
Mortgage to $25,000,000 shall hereinafter be a reference to $70,000,000.
Similarly, the reference in Section 6.12 of the Mortgage to $25,000,000 shall
hereinafter be a reference to $70,000,000.
(b) Subparagraph (a) of Section 1.1 of the Mortgage is hereby amended
and restated in its entirety as follows:
"(a) The Agent and the Lenders have agreed to establish a $70,000,000
senior secured credit facility (hereinafter the loans and extensions of
credit thereunder may be called the "Obligations") in favor of the
Sleepmaster L.L.C., a New Jersey limited liability company (the
"Borrower") pursuant to the terms of that certain Amended and Restated
Credit Agreement dated as of the date hereof among the Borrower,
Sleepmaster Holdings, L.L.C., as the Parent, the domestic subsidiaries
of the Borrower (including the Grantor) (individually a "Guarantor" and
collectively with the Grantor, the "Guarantors"), the Agent and the
Lenders (as amended, modified, extended, renewed or replaced from time
to time, the "Restated Credit Agreement") and as evidenced by (i) those
revolving credit promissory notes of the Borrower, under which sums may
be advanced, paid back or readvanced (as referenced and defined in the
Restated Credit Agreement, as amended, modified, supplemented,
extended, renewed or replaced from time to time, the "Revolving
Notes"), (ii) those term promissory notes of the Borrower (as
referenced and defined in the Restated Credit Agreement, as amended,
modified,
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supplemented, extended, renewed or replaced from time to time, the
"Term Notes") and (iii) those letters of credit for the account of the
Borrower or any other Credit Party (as referenced in the Restated
Credit Agreement, the "Letters of Credit"). The Revolving Notes and the
Term Notes shall hereinafter collectively be called the "Notes."
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to such terms in the Restated Credit Agreement. This
Mortgage is given to secure the payment of the Borrower and the Grantor
under any Hedging Agreements (as defined in the Restated Credit
Agreement) and all indebtedness and other obligations now or hereafter
owing under the Notes, the Letters of Credit, the Restated Credit
Agreement, this Mortgage and the other Credit Documents (collectively,
the "Indebtedness")."
SECTION 3. Ratification. Except as hereby modified, the terms and
conditions of the Mortgage (and Exhibits) remain in full force and effect. The
parties, by their execution hereof, hereby ratify, affirm and approve the
Mortgage (and Exhibits) as modified by this First Amendment.
SECTION 4. Governing Law. This First Amendment shall be governed by and
construed in accordance with, the laws of the State of Florida.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment under seal as of the above written date.
WITNESSES: PALM BEACH BEDDING COMPANY, a Florida
corporation
By:
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By Name (Printed):
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Name (Printed): Title:
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By
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Name (Printed):
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STATE OF
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COUNTY OF
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The foregoing instrument was acknowledged before me this ____ day of
__________ , 1999 by ____________________ as ____ of Palm Beach Bedding Company,
a Florida corporation, behalf of the corporation. He/she personally appeared
before me and is/are personally known to me or produced ___________________ as
identification.
Notary:
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[NOTARIAL SEAL] Printed Name:
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Notary Public, State of
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FIRST UNION NATIONAL BANK, a national
banking association
WITNESSES:
By:
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By Name (Printed):
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Name (Printed): Title:
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By
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Name (Printed):
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STATE OF
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COUNTY OF
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The foregoing instrument was acknowledged before me this____ day
of_________________ , 1999 by_______________________ as_______________ of FIRST
UNION NATIONAL BANK, a national banking association, on behalf of the banking
association. He/she personally appeared before me and is/are personally known to
me or produced ________________________________________ identification.
Notary:
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[NOTARIAL SEAL] Printed Name:
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Notary Public, State of
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Exhibit A
(Legal Description)
