Exhibit 10.1
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EXECUTION COPY
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FIRST AMENDMENT, dated as of May 14, 2002 (this "Amendment"), to the
Credit Agreement, dated as of August 6, 1999, as amended and restated as of
January 11, 2002 (as further amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Mattress Holding Corporation
("Holdings"), Mattress Discounters Corporation (the "Borrower"), the several
banks and other financial institutions from time to time parties thereto (the
"Lenders"), the Co-Agent named therein, and JPMorgan Chase Bank, as
Administrative Agent.
W I T N E S S E T H:
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WHEREAS, Holdings, the Borrower, the Lenders, the Co-Agent and the
Administrative Agent are parties to the Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders amend certain
provisions of the Credit Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other valuable consideration the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All terms defined in the Credit Agreement shall have
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such defined meanings when used herein unless otherwise defined herein.
2. Amendment of Section 7.5(f). Section 7.5(f) of the Credit
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Agreement is hereby amended by adding the following proviso to the end thereof:
", provided that the Administrative Agent receives written notice of
any such exchange at least five Business Days prior to the date
thereof"
3. Amendment of Section 7.5. Section 7.5 of the Credit Agreement is
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hereby amended by adding the following new paragraph (i) to the end thereof:
"(i)(i) the Disposition of the assets described in the Asset
Purchase Agreement, dated as of March 14, 2002, between Malachi
Mattress America, Inc. and the Borrower and (ii) the Disposition of
the assets described in the draft Asset Purchase Agreement circulated
to the Lenders on May 8, 2002 and to be entered into by the Borrower
in respect of certain of the Borrower's South Florida assets on the
terms and conditions described in such draft (the "Draft Terms") or on
other terms and conditions that are not materially less favorable to
the Borrower or the Lenders than the Draft Terms"
4. Representations; No Default. On and as of the date hereof, and
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after giving effect to this Amendment, each of Holdings and the Borrower
confirms, reaffirms and restates that the representations and warranties set
forth in Section 4 of the Credit Agreement are true and correct in all material
respects, provided that the references to the Credit Agreement therein shall be
deemed to be references to this Amendment and to the Credit Agreement as amended
by this Amendment.
5. Conditions to Effectiveness. This Amendment shall become
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effective on and as of the date that the Administrative Agent shall have
received (a) counterparts of this Amendment, duly executed and delivered by a
duly authorized officer of each of Holdings, the Borrower, the Administrative
Agent and the Required Lenders and (b) a consent fee in an aggregate amount
equal to $25,000 to be allocated ratably (based on the Tranche A Commitments) to
each Lender that has returned an executed counterpart
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hereof to the Administrative Agent (or its counsel) by 5:00 p.m., New York City
time, on May 14, 2002. It is understood that the amendment described in clause
(i)(i) of paragraph 3 above shall be effective retroactive to the date of the
Disposition described therein.
6. Limited Amendment. Except as expressly amended herein, the Credit
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Agreement shall continue to be, and shall remain, in full force and effect. This
Amendment shall not be deemed to be a waiver of, or consent to, or a
modification or amendment of, any other term or condition of the Credit
Agreement or any other Loan Document or to prejudice any other right or rights
which the Lenders may now have or may have in the future under or in connection
with the Credit Agreement or any of the instruments or agreements referred to
therein, as the same may be amended from time to time.
7. Counterparts. This Amendment may be executed by one or more of
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the parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
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AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their respective duly authorized officers as of the
date first above written.
MATTRESS HOLDING CORPORATION
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Chief Executive Officer
MATTRESS DISCOUNTERS CORPORATION
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Chief Financial Officer
JPMORGAN CHASE BANK,
as Administrative Agent
and as a Lender
By: /s/ Xxxxxxx Lancia
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Name: Xxxxxxx Lancia
Title: Vice President
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title:
ARK II CLO 2001-1, LIMITED, as a Lender
By: Patriarch Partners II, LLC,
its Collateral Manager
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Authorized Signatory
