EXHIBIT 10.1
THIS FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of December 29, 2005, among Xxxxxxx Bedding Company (f/k/a Xxxxxxx
Company), a Delaware corporation (the "Issuer"), Simmons Company (f/k/a THL
Bedding Holding Company), a Delaware corporation (the "Holdings"), each of the
parties identified as a Guarantor on the signature pages hereto (each, a
"Guarantor" and collectively, the "Guarantors") and Xxxxx Fargo Bank, N. A., as
trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Issuer, the Guarantors named therein and the Trustee are
parties to an indenture dated as of December 19, 2003, as amended or
supplemented from time to time (the "Indenture"), providing for the issuance of
the Issuer's 7.875% Senior Subordinated Notes due 2014 (the "Notes");
WHEREAS, Section 4.03 requires the Issuer to file certain reports and
information with the SEC, whether or not the Issuer is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act;
WHEREAS, Section 4.03 of the Indenture provides if Holdings Guarantees
the Notes and meets certain other requirements set forth in the Indenture, the
reports and information required to be filed or furnished pursuant to Section
4.03 of the Indenture may be filed by and be those of Holdings rather than the
Issuer;
WHEREAS, in order to permit Holdings and the Issuer to file with the
SEC periodic reports containing the consolidated financial statements of
Holdings, the Board of Directors of Holdings has authorized Holdings to
guarantee the obligations of the Issuer with respect to the Notes pursuant to
the terms and subject to the conditions set forth in the Indenture; and
WHEREAS, Section 9.01(5) of the Indenture provides that the Issuer, the
Guarantors and the Trustee may amend the Indenture without notice to or consent
of the Holders of the Notes to add Note Guarantees with respect to the Notes;
NOW THEREFORE, in consideration of the foregoing, the receipt of which
is hereby acknowledged, Holdings and the Trustee mutually covenant and agree for
the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. Holdings hereby (a) Guarantees on the
terms and subject to the conditions set forth in Article 11 of the Indenture (as
the same applies to the Note Guarantees), jointly and severally with the
Guarantors, to each Holder and to the Trustee and its successors and assigns the
full and punctual payment of principal of and interest on the Notes when due,
whether at maturity, by acceleration, by redemption or otherwise, and all other
monetary obligations of the Issuer under the Indenture and the Notes and the
full and punctual performance within all applicable grace periods of all other
obligations of the Issuer under the Indenture and the Notes and (b) subordinates
such Note Guarantee to the extent and in the manner provided in Article 10 of
the Indenture (as the same applies to the Note Guarantees).
3. Ratification of Indenture; Supplemental Indenture Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of Notes heretofore or hereafter
authenticated and delivered shall be bound hereby.
4. Notices. For purposes of Section 13.02 of the Indenture, the
address for notices to Holdings shall be:
Xxxxxxx Company
Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxx Xxxxxx
Xxxxxxxxx Xxxxx
5. Governing Law. This Indenture and the Notes shall be governed
by, and construed in accordance with the laws of the State of New York.
6. Counterparts. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
7. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
8. The Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by Holdings and the Issuer.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
XXXXXXX COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
XXXXXXX BEDDING COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
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DREAMWELL, LTD
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Secretary & Controller
SC HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President
SIMMONS CAPITAL MANAGEMENT, LLC
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Secretary & Controller
SIMMONS CONTRACT SALES, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
THE SIMMONS MANUFACTURING CO., LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
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SLEEP COUNTRY USA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President
WINDSOR BEDDING CO., LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President
WORLD OF SLEEP OUTLETS, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
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XXXXX FARGO BANK, N. A., as Trustee
By: /s/ Xxxxxx X. X'Xxxxxxx
------------------------
Name: Xxxxxx X. X'Xxxxxxx
Title: Vice President
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