EXHIBIT 10.12
AMENDMENT NO. 1 TO THE INDEMNITY AGREEMENT
THIS AMENDMENT NO. 1 ("Amendment No. 1") to the Indemnity Agreement dated
as of May 28, 1999, between Xxxxxx-Xxxxxx Company, a Virginia corporation
("Seller"), Xxxx Capital, Inc., a Delaware corporation ("Bain") and MD
Acquisition Corporation, a Virginia corporation ("Buyer") is entered into as of
July 29, 1999.
The parties desire to amend the Agreement and hereby agree as follows:
1. Section B of the Recitals to the Agreement is deleted in its entirety
and the following inserted in lieu thereof:
"X. Xxxx has arranged for part of its financing for the Merger and
the transactions contemplated by the Transaction Agreement under
Commitment Letters attached to the Transaction Agreement as
Schedule 2.2(f) (the "Commitment Letters"). Oldco and the
Companies will collectively borrow and certain providers of the
financing will lend to Oldco and the Companies as described in
the Commitment Letters, Oldco will cause and Mattress Discounters
will issue and sell senior subordinated notes, and Chase
Securities Inc. may sell or purchase non-cash pay notes,
preferred securities or other mezzanine securities, all such
financing as described in the Commitment Letters together with
[associated warrants to acquire capital stock of Oldco]
(including any offering document registration statement,
prospectus or other document in connection therewith) (the "Debt
Offering"). In the event senior notes of Mattress Discounters are
offered in lieu of senior subordinated notes, the definition of
Debt Offering shall be deemed to include such senior notes. Bain
desires to take all steps necessary with respect to the Debt
Offering prior to the Merger so that the closing of the Debt
Offering will occur at or about the Effective Time."
2. Except as expressly set forth in this Amendment, all other terms and
conditions of the Agreement shall remain in full force and effect. Capitalized
terms used herein and not otherwise defined shall have the meaning assigned to
such terms in the Agreement.
3. This Amendment may be executed in any number of counterparts, each of
which shall be deemed an original but all of which together shall constitute one
instrument.
4. This Amendment shall be governed by and construed in accordance with its
laws of the Commonwealth of Virginia without regard to the conflict of laws
rules thereof.
5. This Amendment shall be effective as of July 29, 1999.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
Buyer:
-----
MD Acquisition Corporation,
a Virginia corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx
Vice President
Bain:
----
Xxxx Capital, Inc.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx
Vice President
Seller:
------
Xxxxxx-Xxxxxx Company,
a Virginia corporation
By: /s/ Xxx X. Xxxxxxx
------------------------------
Xxx X. Xxxxxxx
Executive Vice President
