Exhibit 10.6.6
SIMMONS COMPANY
FIFTH AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT
THIS FIFTH AMENDMENT (this "AMENDMENT") dated as of November 12, 2003 to
the CREDIT AND GUARANTY AGREEMENT dated as of October 29, 1998 (as amended by
that certain First Amendment to Credit and Guaranty Agreement dated as of March
1, 1999, that certain Second Amendment to Credit and Guaranty Agreement dated as
of March 22, 2000, that certain Third Amendment and Waiver to Credit and
Guaranty Agreement dated as of January 5, 2001, that certain Fourth Amendment to
Credit and Guaranty Agreement dated as of October 21, 2002 and that certain
Consent Letter dated as of February 6, 2003 (the "CREDIT AGREEMENT") is entered
into by and among XXXXXXX COMPANY, a Delaware corporation (the "COMPANY"),
XXXXXXX HOLDINGS, INC., a Delaware corporation ("HOLDINGS"), the CREDIT SUPPORT
PARTIES listed on the signature papers hereto, CERTAIN FINANCIAL INSTITUTIONS
listed on the signature pages hereto, XXXXXXX SACHS CREDIT PARTNERS, L.P., as
Syndication Agent and UBS AG, STAMFORD 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
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS; INTERPRETATION.
A. Section 1 of the Credit Agreement is hereby amended by adding the
following definitions in proper alphabetical order:
"FIFTH AMENDMENT" means that certain Fifth Amendment to Credit and
Guaranty Agreement dated as of November 12, 2003 among Company,
Holdings, Syndication Agent, Administrative Agent, and the financial
institutions and the Credit Support Parties listed on the signature
pages thereto.
"Fifth Amendment Effective Date" means the date of satisfaction of the
conditions referred to in Section 2 of the Fifth Amendment.
1.2 Amendments to Section 6: Negative Covenants.
A. Section 6.5 of the Credit Agreement is hereby amended by deleting the
"and" at the end of the clause (vi) thereof, deleting the "." at the end of
clause (vii) thereof and inserting "and" in lieu thereof, and further by
inserting the following clause (viii) at the end thereof:
" (viii) Company may make Restricted Junior Payments to Holdings during the
period beginning on the Fifth Amendment Effective Date until the Fiscal
Year-end for Fiscal Year 2003 to permit Holdings to repurchase its capital
stock from certain Management Investors; provided, that (a) at the time of
such Restricted Junior Payment; and immediately after giving effect
thereto, no Event of Default shall have occurred and be continuing under
Section 8.1(a) or as a result of a breach of the provisions of Sections 6.6
and the lapse of 30 days without cure or waiver of such breach and (b) the
aggregate amount of Restricted Junior Payments made pursuant to this clause
(viii) shall not exceed $5,000,000."
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the satisfaction
of all of the following conditions precedent (the date of satisfaction of
such conditions being refereed to herein as the "Fifth Amendment Effective
Date):
A. Execution. Credit Parties and Requisite Lenders shall have executed this
Amendment.
B. Necessary Consents. Each Credit Party shall have obtained all material
consents necessary or advisable in connection with the transactions
contemplated by this Amendment.
C. Other Documents. Administrative Agent and Lenders shall have received such
other documents and information regarding Credit Parties as Administrative
Agent may reasonably request.
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:
A. CORPORATE POWER AND AUTHORITY. Each Credit Party which is party
hereto has all requisite corporate 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") and the other Credit Documents.
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement and the other Credit
Documents have been duly authorized by all necessary corporate action on the
part of each Credit Party.
C. NO CONFLICT. The execution and delivery by each Credit Party of this
Amendment and the performance by each Credit Party of the Amended Agreement and
the other Credit Documents 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 the 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 such 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 Fifth Amendment Effective
Date.
D. 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 and the other Credit Documents, except for such actions,
consents and approvals the failure to obtain or make which could not reasonably
be excepted to result in a Material Adverse Effect or which have been obtained
and are in full force and effect.
E. BINDING OBLIGATION. This Amendment and the Amendment 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' rights generally and
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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).
F. Incorporation of Representations and Warranties from Credit
Agrement. 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 Fifth 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 Default.
SECTION 4. ACKNOWLEDGEMENT 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 Fifth Amendment Effective
Date to the same extent as though made on and as of the 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 Support
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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
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the Fifth 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.
(ii) 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.
(iii) 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.
B. 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.
C. 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 S-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
D. 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
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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.
E. AMENDMENT AND RESTATEMENT. To facilitate reference to the provisions of
the Credit Agreement, as amended by this Amendment, each Lender executing this
Amendment hereby authorizes Administrative Agent, on its behalf, to enter into
an amendment and restatement of the Credit Agreement, as amended by this
Amendment; provided that any such amendment and restatement shall be
distributed to each Lender.
[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 COMPANY
By: /s/ [SIG]
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President & Chief
Financial Officer
Holdings: XXXXXXX HOLDINGS, INC.
By: /s/ [SIG]
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President & Chief
Financial Officer
Credit Support Parties: XXXXXXX INTERNATIONAL HOLDING COMPANY, INC.
(for purposes of Section 4 only) as a Credit Support
Party
By: /s/ [SIG]
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President
THE XXXXXXX MANUFACTURING CO., LLC
(for purposes of Section 4 only) as a Credit
Support party
By: /s/ [SIG]
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President & Chief
Financial Officer
WORLD OF SLEEP OUTLETS, LLC,
(for purposes of Section 4 only) as a Credit Support
Party
By: [SIG]
------------------------------
Name: [SIG]
Title: Executive Vice President & Chief
Financial Officer
XXXXXXX CONTRACT SALES, LLC,
(for purposes of Section 4 only) as a Credit Support
Party
By: [SIG]
------------------------------
Name: [SIG]
Title: Executive Vice President & Chief
Financial Officer
GALLERY CORP.,
(for purposes of Section 4 only) as a Credit Support
Party
By: [SIG]
------------------------------
Name: [SIG]
Title: Executive Vice President
DREAMWELL, LTD.,
(for purposes of Section 4 only) as a Credit Support
Party
By: [SIG]
------------------------------
Name: [SIG]
Title: President
XXXXXXX CAPITAL MANAGEMENT, LLC.
(for purposes of Section 4 only) as a Credit Support
Party
By: [SIG]
------------------------------
Name: [SIG]
Title: President
S-2
WINDSOR BEDDING CO., LLC,
(for purposes of Section 4 only) as a Credit Support
Party
By: [SIG]
------------------------------
Name: [SIG]
Title: Executive Vice President & Chief
Financial Officer
SC HOLDINGS, INC.,
(for purposes of Section 4 only) as a Credit Support
Party
By: [SIG]
------------------------------
Name: [SIG]
Title: Executive Vice President
SLEEP COUNTRY USA, INC.,
(for purposes of Section 4 only) as a Credit Support
Party
By: [SIG]
------------------------------
Name: [SIG]
Title: Executive Vice President
S-3
LENDERS AND AGENTS XXXXXXX XXXXX CREDIT PARTNERS L.P
By: /s/ Xxxxxxxxx Xxxxxxx
-----------------------
Authorized Signatory
S-4
UBS AG, STAMFORD BRANCH
By: /s/ Xxxxxxx X. Xxxx
--------------------------
Name: Xxxxxxx X. Sami
Associate Director
Title: Banking Products
Services US
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Associate Director
Banking Products Services, US
WACHOVIA BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
Senior Vice President
Textron Financial Corporation
By: /s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President - Operations
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Principal and Portfolio Manager
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital as Collateral Manager
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Principal and Portfolio Manager
[NAME OF LENDER] Scotiabanc Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
PB Capital Corporation
By: /s/ Xxxxx X. XxXxxxxx
Name: Xxxxx X. XxXxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
Toronto Dominion New York Inc.
By: /s/ Xxxx Xxxxxx
----------------
Name Xxxx Xxxxxx
Title V.P
SUNTRUST BANK
By: Xxxxx Xxxxxx
-------------
Name Xxxxx Xxxxxx
Title: Vice President
The Bank of New York
By: Xxxxxxxxx X. Rio
----------------
Name: Xxxxxxxxx X. Rio
Title: Vice President
[Senior Vice President] HSBC Bank USA
By: /s/ XXXX XXXXX
----------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
The Mitsubishi Trust and Banking Corporation
By: /s/ Tatsuhisa Teshima
-------------------------------------------
Name: Tatsuhisa Teshima
Title: Deputy General Manager
Smoky River CDO, L.P.,
By RBC Leveraged Capital as Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
TRS 1 LLC, as Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BLACK DIAMOND CLO 2000-1, LTD
By: /s/ Xxxx Xxxxxxx
-------------------
Name: Xxxx Xxxxxxx
Title: Director:
SENIOR DEBT PORTFOLIO
BY: BOSTON MANAGEMENT AND RESEARCH
AS INVESTMENT ADVISOR
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX XXXXX SENIOR SENIOR LOAN FUND
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
OXFORD STRATEGIC INCOME FUND
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX & CO
BY: BOSTON MANAGEMENT AND RESEARCH
AS INVESTMENT ADVISOR
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
RIVIERA FUNDING LLC
By: /s/ XXXXX X. XXXXX
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
New Alliance Global CDO, Limited
By: Alliance Capital Management L.P.,
as Sub-advisor
By: Alliance Capital Management
Corporation, as General Partner
By: /s/ XXXXXX XXXXXXXX
--------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
Monument Capital, Ltd., as Assignee
By: Alliance Capital Management L.P.,
as Investment Manager
By: Alliance Capital Management
Corporation, as General Partner
By: /s/ XXXXXX XXXXXXXX
--------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
