MODIFICATION AGREEMENT
Exhibit
10.1
THIS
MODIFICATION AGREEMENT, dated as of February 22, 2007 (this “Agreement”),
of that certain Credit Agreement referenced below is by and among TEMPUR-PEDIC,
INC., a Kentucky corporation, and TEMPUR PRODUCTION USA, INC., a Virginia
corporation, as Domestic Borrowers, XXX-FOAM ApS, a private limited liability
company existing under the laws of Denmark, as Foreign Borrower; TEMPUR-PEDIC
INTERNATIONAL INC., a Delaware corporation, TEMPUR WORLD LLC, a Delaware limited
liability company, TEMPUR WORLD HOLDINGS, LLC, a Delaware limited liability
company, and certain of their subsidiaries and affiliates, as Guarantors; the
Lenders, L/C Issuers, BANK OF AMERICA, N.A., as Administrative Agent and
Domestic Collateral Agent, and NORDEA BANK DANMARK A/S, as Foreign Collateral
Agent. Capitalized terms used but not otherwise defined herein shall
have the meanings provided in the Credit Agreement.
W
I T N E
S S E T H
WHEREAS,
a term loan and revolving credit facility was established in favor of the
Borrowers pursuant to the terms of that certain Credit Agreement, dated as
of
October 18, 2005 (as amended, restated, extended, supplemented or otherwise
modified, the “Credit Agreement”), among the Borrowers named therein, the
Guarantors named therein, the Lenders party thereto, the Administrative Agent,
the Domestic Collateral Agent and the Foreign Collateral Agent;
WHEREAS,
the Domestic Borrowers have requested that the aggregate amount of commitments
for Domestic Revolving Loans be increased by $50 million from $321 million
to
$371 million; and
WHEREAS,
the Domestic Revolving Lenders have agreed to increase their Domestic Revolving
Commitments pursuant to Section 2.01(h) of the Credit Agreement, as shown on
Schedule 2.01 attached hereto, on the terms and conditions set forth
herein;
NOW,
THEREFORE, IN CONSIDERATION of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
1. Each
of the Domestic Revolving Lenders party to this Agreement agrees to provide
additional Domestic Revolving Commitments under the Credit Agreement as set
forth on Schedule 2.01 attached hereto. The Domestic Revolving
Commitment Percentages are revised to be as set forth on Schedule 2.01
attached hereto. Schedule 2.01 to the Credit Agreement is
amended as set forth on Schedule 2.01 attached hereto.
2. Each
of the Domestic Revolving Lenders party to this Agreement represents and
warrants that it has full power and authority, and has taken all action
necessary, to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
3. Conditions
Precedent. This Agreement shall be effective immediately upon
receipt by the Administrative Agent of all of the following, each in form and
substance satisfactory to the Administrative Agent and the Domestic Revolving
Lenders party hereto:
(a) Executed
Agreement. Counterparts of this Agreement duly executed by the
Credit Parties and the Domestic Revolving Lenders providing additional
commitments hereunder.
(b) Secretary’s
Certificate. A duly executed certificate of a Responsible Officer
of each of the Domestic Borrowers and the Domestic Guarantors, attaching each
of
the following documents and certifying that each is true, correct and complete
and in full force and effect as of the date of this Agreement:
(i) Charter
Documents. Copies of its articles or certificate of organization
or formation, certified to be true, correct and complete as of a recent date
by
the appropriate Governmental Authority of the jurisdiction of its organization
or formation;
(ii) Bylaws. Copies
of its bylaws, operating agreement or partnership agreement;
(iii) Resolutions. Copies
of its resolutions approving and adopting this Agreement, the transactions
contemplated therein, and authorizing the execution and delivery
thereof;
(iv) Incumbency. Incumbency
certificates identifying the Responsible Officers of each such Credit Party
that
are authorized to execute this Agreement and related documents and to act on
such Credit Party’s behalf in connection with this Agreement and the Credit
Documents; and
(v) Good
Standing Certificates. A certificate of good standing or the
equivalent from its jurisdiction of organization or formation certified as
of a
recent date by the appropriate Governmental Authority.
(c) Legal
Opinions. Opinions of legal counsel to the Domestic Borrowers and
the Domestic Guarantors in form and substance acceptable to the Administrative
Agent.
(d) Fees
and Expenses. Payment of all fees and expenses (including fees
and expenses of counsel to the Administrative Agent) in connection with this
Agreement, including upfront fees, if any, in respect of the new commitments
so
established.
For
purposes of determining compliance with the conditions specified in this
Section 3, each of the Domestic Revolving Lenders that has signed this
Agreement shall be deemed to have consented to, approved or accepted or to
be
satisfied with, each document or other matter required hereunder to be consented
to or approved by or acceptable or satisfactory to a Lender, unless the
Administrative Agent shall have received notice from such Lender prior to the
effectiveness of this Agreement specifying its objection thereto.
4. Effectiveness
of Agreement. Upon execution and delivery of this Agreement, all
references to the Credit Agreement in each of the Credit Documents shall
hereafter mean the Credit Agreement as modified by this
Agreement. Except as specifically modified or amended hereby or
otherwise agreed in writing, the Credit Agreement and the other Credit Documents
(including, in each case, schedules and exhibits thereto) are hereby ratified
and confirmed and shall remain in full force and effect according to its
terms.
5. Representations
and Warranties; Defaults. Each of the Domestic Borrowers and the
Domestic Guarantors affirms the following:
(a) all
necessary action to authorize the execution, delivery and performance of this
Agreement has been taken;
(b) after
giving effect to this Agreement, the representations and warranties set forth
in
the Credit Agreement and the other Credit Documents are true and correct in
all
material respects as of the date hereof (except those which expressly relate
to
an earlier period); and
(c) before
and after giving effect to this Agreement, no Default or Event of Default shall
exist.
6. Domestic
Guarantor Acknowledgment. Each Domestic Guarantor hereby (a)
acknowledges and consents to all of the terms and conditions of this Agreement,
(b) reaffirms that, jointly and severally together with the other Domestic
Guarantors, it guarantees the prompt payment and performance of their
obligations as provided in Article IV of the Credit Agreement and (c)
acknowledges and agrees that the such obligations will include any Obligations
with respect to or resulting from the increase in the Aggregate Domestic
Revolving Committed Amount as provided hereunder.
7. Full
Force and Effect. Except as modified hereby, all of the terms and
provisions of the Credit Agreement and the other Credit Documents (including
schedules and exhibits thereto) shall remain in full force and
effect.
8. Counterparts. This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more
than
one such counterpart. Delivery by any party hereto of an executed
counterpart of this Agreement by facsimile shall be effective as such party’s
original executed counterpart and shall constitute a representation that such
party’s original executed counterpart will be delivered.
9. Fees
and Expenses. Pursuant to Section 11.04(a) of the Credit
Agreement, the Domestic Borrowers shall pay all reasonable costs and expenses
of
the Administrative Agent in connection with the preparation, execution and
delivery of this Amendment, including the reasonable fees and expenses of Xxxxx
& Xxx Xxxxx, PLLC.
10. Prepayment
of Loans; Break-Funding Costs. The Domestic Borrowers shall
prepay any Loans outstanding on the date that the increase in the Aggregate
Domestic Revolving Committed Amount becomes effective (and pay any additional
amounts required pursuant to Section 3.05) to the extent necessary to
keep the outstanding Loans ratable with any revised Domestic Revolving
Commitment Percentages arising from any nonratable increase in the Domestic
Revolving Commitments under this subsection.
11. Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
[SIGNATURES
ON FOLLOWING PAGES]
IN
WITNESS WHEREOF, each of the parties
hereto has caused a counterpart of this Amendment to be duly executed and
delivered as of the date first above written.
DOMESTIC
BORROWERS:
TEMPUR-PEDIC, INC., | |||
a Kentucky corporation | |||
|
By:
|
/s/ Xxxx X. Xxxxxxxx | |
Xxxx X. Xxxxxxxx | |||
Chief Financial Officer |
TEMPUR PRODUCTION USA, INC., | |||
a Virginia corporation | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
Xxxxxxx X. Xxxxx | |||
Treasurer |
FOREIGN
BORROWER:
XXX-FOAM ApS, | |||
a private limited liability company existing under the laws of Denmark | |||
|
By:
|
/s/ Xxxx X. Xxxxxxxx | |
Xxxx X. Xxxxxxxx | |||
Attorney in Fact |
DOMESTIC
GUARANTORS:
TEMPUR-PEDIC INTERNATIONAL INC., | |||
a Delaware corporation | |||
TEMPUR WORLD, LLC, | |||
a Delaware limited liability company | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
Xxxxxxx X. Xxxxx | |||
Treasurer of each of the foregoing | |||
TEMPUR WORLD HOLDINGS, LLC, | |||
a Delaware limited liability company | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
Xxxxxxx X. Xxxxx | |||
Assistant Secretary | |||
TEMPUR-PEDIC NORTH AMERICA, INC., | |||
a Delaware corporation (formerly known as Tempur-Pedic Retail, Inc. and as Tempur-Pedic NA, Inc. and successor in interest to Tempur-Pedic Medical, Inc. and Tempur-Pedic, Direct Response, Inc.) | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
Xxxxxxx X. Xxxxx | |||
Treasirer | |||
XXXX SLEEP TECHNOLOGIES, INC., | |||
a Delaware corporation | |||
|
By:
|
/s/ Xxxx X. Xxxxxxxx | |
Xxxx X. Xxxxxxxx | |||
Chief Financial Officer | |||
TEMPUR-PEDIC TECHNOLOGIES, INC., | |||
a Delaware corporation | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
Xxxxxxx X. Xxxxx | |||
Treasurer | |||
FOREIGN
GUARANTORS:
TEMPUR WORLD HOLDINGS, S.L., | |||
a company organized under the laws of Spain | |||
|
By:
|
/s/ Xxxx X. Xxxxxxxx | |
Xxxx X. Xxxxxxxx | |||
Director | |||
TEMPUR DANMARK A/S, | |||
a stock company existing under the laws of Denmark | |||
|
By:
|
/s/ Xxxx X. Xxxxxxxx | |
Xxxx X. Xxxxxxxx | |||
Attorney-in-Fact | |||
ADMINISTRATIVE
AGENT:
BANK OF AMERICA, N.A., | |||
as Administrative Agent and Domestic Collateral Agent | |||
|
By:
|
/s/ Xxxxxxx Xxxxxxxx | |
Xxxxxxx Xxxxxxxx | |||
Vice President | |||
LENDERS:
BANK OF AMERICA, N.A., | |||
as Domestic L/C Issuer and as a Lender | |||
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxx, Xx. | |
Xxxxxx X. Xxxxxxxxx, Xx. | |||
Senior Vice President | |||
NORDEA BANK DANMARK A/S, | ||||
as Foreign L/C Issuer, Foreign Swingline Lender, Foreign Collateral Agent and a Lender | ||||
/s/
Has
Xxxxxxxxxxxx
|
/s/
Xxx
Xxxxxxx
|
|||
Has
Xxxxxxxxxxxx
|
Xxx
Xxxxxxx
|
|||
Head
of
Corporate
|
Region
Branch
Manager
|
FIFTH THIRD BANK, | |||
as a Lender and Domestic Swingline Lender | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |
Xxxxxxx X. Xxxxxxxxx | |||
Vice President | |||
SUNTRUST BANK, | |||
as a Lender | |||
|
By:
|
/s/ Xxx X. Xxxxxxxx | |
Xxx X. Xxxxxxxx | |||
Vice President | |||
XX XXXXXX CHASE BANK, N.A., | |||
as a Lender | |||
|
By:
|
/s/ Xxxxxx X. Xxxxxxxx | |
Xxxxxx X. Xxxxxxxx | |||
Vice President | |||
XXXXX FARGO BANK, N.A., | |||
as a Lender | |||
|
By:
|
/s/ Xxxxx Xxxxxx | |
Xxxxx Xxxxxx | |||
Vice President | |||