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Exhibit 10.1
SEALY MATTRESS COMPANY
SEALY CORPORATION
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is dated as
of May 11, 1998 and entered into by and among Sealy Mattress Company, an Ohio
corporation ("COMPANY"), Sealy Corporation, a Delaware corporation ("HOLDINGS"),
the financial institutions listed on the signature pages hereof ("LENDERS"),
Xxxxxxx Xxxxx Credit Partners L.P., as arranger and syndication agent
("SYNDICATION AGENT"), Xxxxxx Guaranty Trust Company of New York, as
administrative agent for Lenders ("ADMINISTRATIVE AGENT"; collectively,
Syndication Agent and Administrative Agent are referred to herein as "AGENTS"),
and Bankers Trust Company, as documentation agent for Lenders, and is made with
reference to that certain Credit Agreement dated as of December 18, 1997 (the
"CREDIT AGREEMENT"), by and among Company, Holdings, Lenders, Syndication Agent
and Administrative Agent. Capitalized terms used herein without definition shall
have the same meanings herein as set forth in the Credit Agreement or in
subsection 1.1 hereof.
RECITALS
WHEREAS, Company, Holdings and Lenders desire to amend certain of the
terms and provisions of the Credit Agreement to permit a mortgage financing of
Company's proposed new headquarters in lieu of a sale-leaseback financing
thereof;
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 THE CREDIT AGREEMENT
1.1 AMENDMENT TO SECTION 1: DEFINITIONS
A. Subsection 1.1 of the Credit Agreement is hereby further amended by
adding thereto the following definitions, which shall be inserted in proper
alphabetical order:
"FIRST AMENDMENT" means that certain First Amendment to Credit
Agreement dated as of May 11, 1998 by and among Company, Holdings and the
Lenders party thereto.
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"FIRST AMENDMENT EFFECTIVE DATE" has the meaning assigned to
that term in the First Amendment.
"NEW HEADQUARTERS" means the Real Property Asset in Archdale,
North Carolina where the Company's corporate headquarters will be
located on and after the First Amendment Effective Date.
1.2 AMENDMENTS TO SECTION 7: NEGATIVE COVENANTS
A. Subsection 7.1 of the Credit Agreement is hereby amended by
(i) deleting the "and" at the end of clause (xvi) thereof, (ii) deleting the "."
at the end of clause (xvii) thereof and substituting therefor "; and" and (iii)
adding at the end thereof a new clause (xviii) as follows:
"(xviii) Company may become and remain liable with respect to
Indebtedness incurred to finance the acquisition and construction of
the New Headquarters, PROVIDED that the aggregate principal amount of
such Indebtedness shall not exceed $14,500,000 at any time
outstanding."
B. Subsection 7.2A(iv) of the Credit Agreement is hereby
amended by deleting the reference to "subsection 7.1(iii)(b)" contained therein
and substituting therefor "subsections 7.1(iii)(b) and 7.1(xviii)".
C. Subsection 7.8 of the Credit Agreement is hereby amended by
adding a new subsection 7.8D at the end thereof as follows:
"D. Company may make additional Consolidated Capital
Expenditures in connection with the acquisition and construction of the
New Headquarters in an aggregate amount not to exceed $16,000,000;
PROVIDED that such expenditures shall be made on and after the First
Amendment Effective Date."
D. Subsection 7.9 of the Credit Agreement is hereby amended by
(i) deleting the phrase "Except for the transactions described on sCHEDULE 7.9
annexed hereto," and (ii) deleting the last sentence thereof.
E. The Credit Agreement is hereby further amended by deleting
SCHEDULE 7.9 therefrom in its entirety.
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon
the prior or concurrent satisfaction of all of the following conditions
precedent (the date of
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satisfaction of such conditions being referred to herein as the "FIRST AMENDMENT
EFFECTIVE DATE"):
A. On or before the First Amendment Effective Date, each of
Company and Holdings shall have delivered to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed
copies, where appropriate, for each Lender and its counsel) the
following, each, unless otherwise noted, dated the First Amendment
Effective Date:
1. A certificate of its corporate secretary or an
assistant secretary to the effect that (i) there have been no
amendments to its Certificate of Incorporation or Bylaws after
the Closing Date, (ii) the Resolutions of its Board of
Directors delivered on the Closing Date are in full force and
effect without modification or amendment, and (iii) there have
been no changes after the Closing Date in the incumbency of its
officers, together with a good standing certificate from the
Secretary of State of the State of Delaware, dated a recent
date prior to the First Amendment Effective Date; and
2. This Amendment, executed by Holdings and Company.
B. On or before the First Amendment Effective Date, Company
shall have delivered to Lenders an Additional Mortgage and all other
documents required to be delivered under (and shall have complied with
all other covenants contained in) subsection 6.9 of the Credit
Agreement in connection with the acquisition of the New Headquarters.
C. Company shall have delivered to Lenders an Officers'
Certificate dated the First Amendment Effective Date certifying that no
Potential Event of Default or Event of Default has occurred and is
continuing or, after giving effect to this Amendment, shall be caused
by the acquisition and financing of the New Headquarters or the
consummation of the other transactions contemplated by this Amendment.
D. Company shall have delivered to Administrative Agent for
Lenders (with sufficient originally executed copies for each Lender and
its counsel) originally executed copies of one or more favorable
written opinions of internal counsel of Company, dated the Closing Date
and in form and substance reasonably satisfactory to Administrative
Agent and its counsel, regarding the matters set forth in paragraphs A
through E of Section 3 of this Amendment.
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SECTION 3. COMPANY'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, Company represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. CORPORATE POWER AND AUTHORITY. Each of Holdings and Company
has all requisite corporate power and authority to enter into this Amendment and
to carry out the transactions contemplated by the Credit Agreement as amended by
this Amendment (as so amended, the "AMENDED AGREEMENT").
B. 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 action on the part of Holdings, Company
and its Subsidiaries.
C. NO CONFLICT. The execution and delivery by each of Holdings
and Company of this Amendment and the performance by Holdings and Company of the
Amended Agreement do not and will not (i) violate any provision of any law or
any governmental rule or regulation applicable to Holdings, Company or any of
its Subsidiaries, the Certificate or Articles of Incorporation or Bylaws of
Holdings, Company or any of its Subsidiaries, or any order, judgment or decree
of any court or other agency of government binding on Holdings, Company or any
of its Subsidiaries, (ii) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any Contractual
Obligation of Holdings, Company or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of Holdings, Company or any of its Subsidiaries (other than any Liens
created under any of the Collateral Documents in favor of Collateral Agent on
behalf of Lenders), or (iv) require any approval of stockholders or any approval
or consent of any Person under any Contractual Obligation of Holdings, Company
or any of its Subsidiaries except for such approvals or consents which will be
obtained on or before the First Amendment Effective Date.
D. GOVERNMENTAL CONSENTS. The execution and delivery by
Holdings and Company of this Amendment and the performance by Holdings and
Company of the Amended Agreement do not and will not require any registration
with, consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body.
E. BINDING OBLIGATION. This Amendment and the Amended Agreement
have been duly executed and delivered by Company and Holdings and are the
legally valid and binding obligations of Holdings and Company, enforceable
against Holdings and Company in accordance with their respective terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability.
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F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit 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.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing
or will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Potential Event of
Default.
SECTION 4. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
(i) 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 Loan 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
Amended Agreement.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein or therein, constitute a
waiver of any provision of, or operate as a waiver of any right, power
or remedy of any Agent or any Lender under, the Credit Agreement or any
of the other Loan Documents.
B. FEES AND EXPENSES. Company acknowledges that all reasonable
costs, fees and expenses incurred by Agents and their counsel with respect to
this Amendment and the documents and transactions contemplated hereby shall be
for the account of Company.
C. 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.
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D. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
E. COUNTERPARTS. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, 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. This Amendment (other than Section 1 hereof) shall become
effective upon the execution of a counterpart hereof by Requisite Lenders,
Company, Holdings and Agents and receipt by Company and Administrative Agent of
written or telephonic notification of such execution and authorization of
delivery thereof.
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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.
SEALY MATTRESS COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
SEALY CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President & Treasurer
XXXXXXX XXXXX CREDIT PARTNERS
L.P.,
individually and as Syndication Agent
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
individually and as Administrative Agent
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: VP
BANKERS TRUST COMPANY,
individually and as Documentation Agent
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Duly Authorized Signatory
Notice Address:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx XxXxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK BOSTON, N.A.
By: /s/ Xxxxxxx X.X. Xxxxx
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Name: Xxxxxxx X.X. Xxxxx
Title: Managing Director
Notice Address:
Bank of Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx, F.V.P.
Title: Head of Corporate Banking
Chicago
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title Senior Vice President
Branch Manager
Notice Address:
Credit Agricole Indosuez
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXX BANK LTD
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
Notice Address:
Xxxxxx Bank
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CIBC, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Managing Director
CIBC Xxxxxxxxxxx Corp.,
AS AGENT
Notice Address:
CIBC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CITY NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
Notice Address:
City National Bank
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention:
Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
COMERICA BANK
By: /s/ Xxxxxxx X. Judge
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Name: Xxxxxxx X. Judge
Title: Vice President
Notice Address:
Comerica Bank
One Detroit Center
000 Xxxxxxxx Xxxxxx XX 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
HUNTINGTON NATIONAL BANK,
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: A.V.P.
Notice Address:
Huntington National Bank
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxxxx Xxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
SANWA BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
Notice Address:
Sanwa Business Credit Corporation
000 Xxxxxxxxxxx Xxxxxx Xxxx
0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SUMMIT BANK
By: /s/ Sage Nakamura
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Name: Sage Nakamura
Title: Assistant Treasurer
Notice Address:
Summit Bank
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Sage Nakamura
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
