SIMMONS BEDDING COMPANY FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
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BEDDING COMPANY
FIRST
AMENDMENT TO SECOND AMENDED AND RESTATED
THIS
FIRST AMENDMENT
(this
“Amendment”)
dated
as of February 9, 2007 to the SECOND
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
dated as
of May 25, 2006 (the “Credit
Agreement”)
is
entered into by and among ▇▇▇▇▇▇▇
BEDDING COMPANY (formerly
known as ▇▇▇▇▇▇▇ Company), a Delaware corporation (“Company”),
THL-SC
BEDDING COMPANY,
a
Delaware corporation (“Holdings”),
CERTAIN SUBSIDIARIES OF COMPANY PARTY HERETO,
as
Credit Support Parties, ▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.,
sole
bookrunner, Lead Arranger and Syndication Agent, CERTAIN FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HERETO,
and
DEUTSCHE
BANK AG, NEW YORK 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
Section
1
of the Credit Agreement is herby amended as follows:
(a)
The
definition of “Parent” is hereby deleted and replaced in its entirety as
follows:
“Parent”
means
▇▇▇▇▇▇▇ Company (formerly known as THL Bedding Holding Company), a Delaware
corporation, or any direct or indirect parent thereof.
(b)
The
definition of “Parent Notes” is hereby deleted and replaced in its entirety as
follows:
“Parent
Notes”
means
those certain (i) 10% Senior Discount Notes due 2014 issued by Parent pursuant
to that certain Indenture dated as of December 15, 2004 by and between Parent
and ▇▇▇▇▇ Fargo Bank, National Association, as Trustee, and (ii) the loans
made
under that certain Credit Agreement dated as of February [ ], 2007 by and among
▇▇▇▇▇▇▇ Holdco, Inc., the lenders from time to time party thereto, and Deutsche
Bank Trust Company Americas, as administrative agent, in each case, as such
notes, Indenture, loans and Credit Agreement may be amended, restated,
supplemented or otherwise modified from time to time.
SECTION
2. CONDITIONS
TO EFFECTIVENESS
This
Amendment shall become effective only upon the satisfaction or waiver of all
of
the following conditions precedent (the date of satisfaction of such conditions
being referred to herein as the “First
Amendment Effective Date”):
1. Execution.
Credit
Parties and Requisite Lenders shall have executed this Amendment.
2. Fees.
The
Agents shall have received all expenses and other amounts due and payable on
or
prior to the First Amendment Effective Date, including, to the extent invoiced
at least two days prior to the First Amendment Effective Date, reimbursement
or
other payment of all out-of-pocket expenses required to be reimbursed or paid
by
the Company hereunder or under any other Credit Document.
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:
1. Corporate
Power and Authority.
Each
Credit Party which is party hereto has all requisite corporate or other
organizational 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”).
2. 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 or other
organizational action on the part of each Credit Party.
3. No
Conflict.
The
execution and delivery by each Credit Party of this Amendment and the
performance by each Credit Party of the Amended Agreement do not and will not
(i) violate or conflict with (A) any provision of any law, governmental rule
or
regulation applicable to Holdings or any of its Subsidiaries, or of the
certificate or articles of incorporation or partnership agreement, other
constitutive documents or by-laws of Holdings or any of its Subsidiaries or
(B)
any applicable order, judgment or decree of any court or other agency of
government binding on Holdings or any of its Subsidiaries, (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 any Contractual Obligation of Holdings or any of its
Subsidiaries, except where any such conflict, violation, breach or default
referred to in clause (i) or (ii) of this Section 3, could not 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 First Amendment Effective
Date or the failure of which to obtain would not reasonably be expected to
have
a Material Adverse Effect.
4. Governmental
Consents.
No
consent or approval of, registration or filing with or any other action by
any
federal, state or other governmental authority or regulatory body 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, except for such actions, consents and approvals the failure to obtain
or make could not reasonably be expected to result in a Material Adverse Effect
or which have been obtained and are in full force and effect.
5. Binding
Obligation.
This
Amendment and the Amended 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
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).
6. Incorporation
of Representations and Warranties From Credit Agreement.
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 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.
7. Absence
of Default.
After
giving effect to this Amendment, no event has occurred and is continuing that
would constitute an Event of Default or a Default.
SECTION
4. ACKNOWLEDGMENT
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 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.
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 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
1. Reference
to and Effect on the Credit Agreement and the Credit Documents.
(1) 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 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.
(2) 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.
(3) 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.
2. 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.
3. 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
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK).
4. Counterparts.
This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts (including by means of facsimile), 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.
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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.
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BORROWER:
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▇▇▇▇▇▇▇
BEDDING COMPANY
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By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Executive Vice President and Chief Financial Officer
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HOLDINGS:
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THL-SC
BEDDING COMPANY
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By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Executive Vice President and Chief Financial Officer
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CREDIT
SUPPORT PARTIES:
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THE
SIMMONS MANUFACTURING CO., LLC
WORLD
OF SLEEP OUTLETS, LLC
SIMMONS
CONTRACT SALES, LLC
(for
purposes of Section 4 only) as a Credit Support Party
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By: /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇▇▇
Title:
Executive Vice President and Chief Financial Officer
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WINDSOR
BEDDING CO., LLC
(for
purposes of Section 4 only) as a Credit Support Party
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By: /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Executive Vice President and Chief Financial
Officer
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DREAMWELL,
LTD.
▇▇▇▇▇▇▇
CAPITAL MANAGEMENT, LLC
(for
purposes of Section 4 only) as a Credit Support Party
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By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Secretary and Controller
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LENDERS
AND AGENTS
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▇▇▇▇▇▇▇
▇▇▇▇▇ CREDIT PARTNERS L.P.,
individually,
as sole bookrunner, Lead Arranger, Syndication Agent and as
Lender
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By:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Authorized
Signatory
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DEUTSHE
BANK AG,
NEW
YORK BRANCH,
as
Administrative Agent
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By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Vice President
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By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Director
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DEUTSHE
BANK AG,
CAYMAN
ISLANDS BRANCH,
individually,
as a Lender
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By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Vice President
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By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Director
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