Exhibit 10.1
XXXXXXX BEDDING COMPANY
FIRST AMENDMENT TO AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
THIS FIRST AMENDMENT (this "AMENDMENT") dated as of December 16, 2005 to
the AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT dated as of August 27,
2004 (the "CREDIT AGREEMENT") is entered into by and among XXXXXXX BEDDING
COMPANY (formerly known as Xxxxxxx Company), a Delaware corporation ("COMPANY"),
THL-SC BEDDING COMPANY, a Delaware corporation ("HOLDINGS"), CERTAIN
SUBSIDIARIES OF COMPANY PARTY HERETO, as Credit Support Parties, XXXXXXX SACHS
CREDIT PARTNERS L.P., as Co-Syndication Agent, CERTAIN FINANCIAL INSTITUTIONS
LISTED ON THE SIGNATURE PAGES HERETO, UBS SECURITIES LLC, as Co-Syndication
Agent, and DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative Agent.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement and in the amendments contained in
Section 1 hereof.
RECITALS
WHEREAS, Company and Requisite Lenders desire to amend the Credit
Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
1. Section 1 of the Credit Agreement is hereby amended by adding
the following definitions in proper alphabetical order:
"FIRST AMENDMENT" means that certain First Amendment to
Amended and Restated Credit and Guaranty Agreement dated as of
December 16, 2005 among Company, Holdings, Co-Syndication
Agents, Administrative Agent, and the financial institutions and
the Credit Support Parties listed on the signature pages
thereto.
"FIRST AMENDMENT EFFECTIVE DATE" means December 16,
2005.
2. Section 6.6(a) and Section 6.6(b) of the Credit Agreement are
hereby amended by deleting such Sections in their entirety and replacing them
with the following:
(a) MINIMUM CASH INTEREST COVERAGE RATIO. Permit the ratio of (i)
Consolidated Adjusted EBITDA to (II) Consolidated Cash Interest Expense for any
four-Fiscal Quarter period ending on the dates set forth below to be less than
the correlative ratio indicated:
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MINIMUM CASH INTEREST CHARGE
FOUR FISCAL QUARTER PERIOD ENDING COVERAGE RATIO
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December 31, 2005 1.85:1.00
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March 31, 2006 1.85:1.00
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June 30, 2006 1.85:1.00
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September 30, 2006 1.85:1.00
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December 31, 2006 1.85:1.00
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March 31, 2007 2.00:1.00
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June 30, 2007 2.15:100
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September 30, 2007 2.15:100
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December 31, 2007 2.25:100
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March 31, 2008 2.75:1.00
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June 30, 2008 2.75:1.00
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September 30, 2008 2.75:1.00
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December 31, 2008 2.75:1.00
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March 31, 2009 3.00:1.00
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June 30, 2009 3.00:1.00
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September 30, 2009 3.00:1.00
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December 31, 2009 3.00:1.00
and each Fiscal Quarter ending thereafter
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(b) MAXIMUM LEVERAGE RATIO. Permit the Leverage Ratio as of the last
day of any Fiscal Quarter ending on the dates set forth below to exceed the
correlative ratio indicated:
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MAXIMUM LEVERAGE
DATE RATIO
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December 31, 2005 6.50:1.00
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March 31, 2006 6.25:1.00
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MAXIMUM LEVERAGE
DATE RATIO
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June 30, 2006 6.25:1.00
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September 30, 2006 6.15:1.00
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December 31, 2006 5.90:1.00
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March 31, 2007 5.60:1.00
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June 30, 2007 5.25:100
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September 30, 2007 5.00:100
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December 31, 2007 5.00:100
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March 31, 2008 4.50:1.00
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June 30, 2008 4.50:1.00
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September 30, 2008 4.50:1.00
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December 31, 2008 4.50:1.00
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March 31, 2009 4.00:1.00
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June 30, 2009 4.00:1.00
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September 30, 2009 4.00:1.00
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December 31, 2009 4.00:1.00
and each Fiscal Quarter ending thereafter
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SECTION 2. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective only upon the satisfaction or
waiver of all of the following conditions precedent (the date of satisfaction of
such conditions being referred to herein as the "FIRST AMENDMENT EFFECTIVE
DATE"):
1. EXECUTION. Credit Parties and Requisite Lenders shall have
executed this Amendment.
2. AMENDMENT FEE. The Administrative Agent shall have received, for
distribution to all Lenders executing this Amendment, an amendment fee equal to
0.150% of such Lender's outstanding Loans and Commitments.
3. OTHER FEES. The Agents shall have received all other fees and
other amounts due and payable on or prior to the First Amendment Effective Date,
including, to the extent invoiced at least two days prior to the First Amendment
Effective Date, reimbursement or other payment of all out-of-pocket expenses
required to be reimbursed or paid by the Company hereunder or under any other
Credit Document.
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SECTION 3. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the
Credit Agreement in the manner provided herein, the Company represents and
warrants to each Lender that the following statements are true, correct and
complete in all material respects:
1. CORPORATE POWER AND AUTHORITY. Each Credit Party which is party
hereto has all requisite corporate or other organizational power and authority
to enter into this Amendment and to carry out the transactions contemplated by,
and perform its obligations under, the Credit Agreement as amended by this
Amendment (the "AMENDED AGREEMENT").
2. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate or other organizational action on the part of each
Credit Party.
3. NO CONFLICT. The execution and delivery by each Credit Party of
this Amendment and the performance by each Credit Party of the Amended Agreement
do not and will not (i) violate (A) any provision of any law, statute, rule or
regulation, or of the certificate or articles of incorporation or partnership
agreement, other constitutive documents or by-laws of Holdings, the Company or
any Subsidiary, (B) any applicable order of any court or any rule, regulation or
order of any Governmental Authority or (C) any provision of any indenture,
certificate of designation for preferred stock, agreement or other instrument to
which Holdings, the Company or any Subsidiary is a party or by which any of them
or any of their property is or may be bound, (ii) be in conflict with, result in
a breach of or constitute (alone or with notice or lapse of time or both) a
default under any indenture, certificate of designation for preferred stock,
agreement or other instrument, where any such conflict, violation, breach or
default referred to in clause (i) or (ii) of this Section 3.C., individually or
in the aggregate could reasonably be expected to have a Material Adverse Effect,
(iii) result in or require the creation or imposition of any Lien upon any of
the properties or assets of each Credit Party (other than any Liens created
under any of the Credit Documents in favor of Administrative Agent on behalf of
Lenders), or (iv) require any approval of stockholders or partners or any
approval or consent of any Person under any Contractual Obligation of each
Credit Party, except for such approvals or consents which will be obtained on or
before the First Amendment Effective Date or the failure of which to obtain
would not reasonably be expected to have a Material Adverse Effect.
4. GOVERNMENTAL CONSENTS. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the execution and delivery by each Credit
Party of this Amendment and the performance by Company and Holdings of the
Amended Agreement, except for such actions, consents and approvals the failure
to obtain or make which could not reasonably be expected to result in a Material
Adverse Effect or which have been obtained and are in full force and effect.
5. BINDING OBLIGATION. This Amendment and the Amended Agreement
have been duly executed and delivered by each of the Credit Parties party
thereto and each constitutes a legal, valid and binding obligation of such
Credit Party to the extent a party thereto enforceable against such Credit Party
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting creditors'
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rights generally and except as enforceability may be limited by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
6. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 4 of the
Amended Agreement are and will be true, correct and complete in all material
respects on and as of the First Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
7. ABSENCE OF DEFAULT. After giving effect to this Amendment, no
event has occurred and is continuing that would constitute an Event of Default
or a Default.
SECTION 4. ACKNOWLEDGMENT AND CONSENT
Each of the Credit Parties set forth on the signature pages hereto are
collectively referred to herein as the "CREDIT SUPPORT PARTIES", and the Credit
Documents to which they are a party are collectively referred to herein as the
"CREDIT SUPPORT DOCUMENTS".
Each of the Company and the Credit Support Parties hereby acknowledges
that it has reviewed the terms and provisions of the Credit Agreement and this
Amendment and consents to the amendment of the Credit Agreement effected
pursuant to this Amendment. Each of the Company and the Credit Support Parties
hereby confirms that each Credit Support Document to which it is a party or
otherwise bound and all Collateral encumbered thereby will continue to guarantee
or secure, as the case may be, to the fullest extent possible in accordance with
the Credit Support Documents the payment and performance of all "Obligations"
under each of the Credit Support Documents to which is a party (in each case as
such terms are defined in the applicable Credit Support Document).
Each of the Company and the Credit Support Parties acknowledges and
agrees that any of the Credit Support Documents to which it is a party or
otherwise bound shall continue in full force and effect and that all of its
obligations thereunder shall be valid and enforceable and shall not be impaired
or limited by the execution or effectiveness of this Amendment. Each of the
Company and the Credit Support Parties represents and warrants that all
representations and warranties contained in the Amended Agreement and the Credit
Support Documents to which it is a party or otherwise bound are true, correct
and complete in all material respects on and as of the First Amendment Effective
Date to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
Each of the Company and the Credit Support Parties acknowledges and
agrees that (i) notwithstanding the conditions to effectiveness set forth in
this Amendment, each such Credit Support Party is not required by the terms of
the Credit Agreement or any other Credit Support Document to consent to the
amendments to the Credit Agreement effected pursuant to this Amendment and (ii)
nothing in the Credit Agreement, this Amendment or any other Credit
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Support Document shall be deemed to require the consent of any of the Company
and each such Credit Support Party to any future amendments to the Credit
Agreement.
SECTION 5. MISCELLANEOUS
1. Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
(1) On and after the First Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Credit Documents to the
"Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement as amended by this Amendment.
(2) Except as specifically amended by this Amendment, the
Credit Agreement and the other Credit Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(3) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right, power
or remedy of any Agent or Lender under, the Credit Agreement or any of
the other Credit Documents.
2. HEADINGS. Section and Subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
3. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK).
4. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts (including
by means of facsimile), each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWER: XXXXXXX BEDDING COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
Chief Financial Officer,
Assistant Treasurer and
Assistant Secretary
HOLDINGS: THL-SC BEDDING COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
Chief Financial Officer,
Assistant Treasurer and
Assistant Secretary
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CREDIT SUPPORT PARTIES: THE SIMMONS MANUFACTURING CO.,
LLC
WORLD OF SLEEP OUTLETS, LLC
SIMMONS CONTRACT SALES, LLC
(for purposes of Section 4
only) as a Credit Support Party
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
Chief Financial Officer,
Assistant Treasurer and
Assistant Secretary
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WINDSOR BEDDING CO., LLC
SC HOLDINGS, INC.
SLEEP COUNTRY USA, INC.
(for purposes of Section 4
only) as a Credit Support Party
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
Assistant Treasurer and
Assistant Secretary
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DREAMWELL, LTD.
XXXXXXX CAPITAL MANAGEMENT, LLC
(for purposes of Section 4
only) as a Credit Support Party
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Secretary and Controller
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LENDERS AND AGENTS XXXXXXX XXXXX CREDIT PARTNERS
L.P.,
individually, as Co-Syndication
Agent and as Lender
By: /s/ Xxxxxxxxx Xxxxxxx
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Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
Authorized Signatory
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UBS SECURITIES LLC,
as Co-Syndication Agent
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Executive Director
UBS LOAN FINANCE LLC,
as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxx
Title: Associate Director
By: /s/ Xxx X. Xxxx
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Name: Xxx X. Xxxx
Title: Associate Director
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XXXXXXX XXXX XX,
XXX XXXX BRANCH,
as Administrative Agent
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President
DEUTSHE BANK AG,
CAYMAN ISLANDS BRANCH,
individually, as a Lender
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President
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