EXHIBIT 4.6
SECOND SUPPLEMENTAL INDENTURE (this "Second Supplemental Indenture"), dated
as of May 2, 2003, among Mattress Holdings International LLC, a Delaware limited
liability company (the "Guaranteeing Subsidiary"), a subsidiary of Sealy
Mattress Company (or its permitted successor), an Ohio corporation (the
"Company"), the Company and The Bank of New York, as trustee under the indenture
referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of December 18, 1997 among the Company,
the guarantors listed on the signature pages thereto and the Trustee,
supplemented by the Supplemental Indenture, dated April 10, 2001 (the "First
Supplemental Indenture") among the Company, the guarantors listed on the
signature pages thereto and the Trustee, providing for the issuance of an
aggregate principal amount of up to $300.0 million of 9-7/8% Senior Subordinated
Notes due 2007 (the "Notes"), the guarantors listed on the signature pages of
the Indenture and the First Supplemental Indenture, together with the
Guaranteeing Subsidiary, being referred to herein as the "Guarantors";
WHEREAS, the Indenture provides that under certain circumstances a
subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which such subsidiary shall unconditionally guarantee all of the
Company's Obligations under the Notes and the Indenture on the terms and
conditions set forth herein (the "Note Guarantee");
WHEREAS, on the date hereof, the Company will issue an aggregate principal
amount of $50.0 million of the Notes, and shall designate such Notes `Series E
Notes," and will subsequently exchange such Series E Notes for Notes it shall
designate as "Series F Notes" in an exchange registered under the Securities Act
of 1933, as amended (the "Act") pursuant a Registration Rights Agreement, dated
May 2, 2003, among the Company, the guarantors listed on the signature pages
thereto and Goldman, Sachs & Co., J.P. Morgan Securities Inc., Banc of America
Securities LLC and Wachovia Securities, Inc. (the "Registration Rights
Agreement"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company, the Guaranteeing Subsidiary 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. The Guaranteeing Subsidiary hereby agrees as
follows:
(a) Along with all other Guarantors, to jointly and severally Guarantee to
each Holder of a Note authenticated and delivered by the Trustee and
to the
Trustee and its successors and assigns, irrespective of the validity
and enforceability of the Indenture, the Notes or the obligations of
the Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be promptly paid
in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, if lawful, and all other
obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof;
and
(ii) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that same will be
promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due
of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors shall be jointly and severally
obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or the Indenture,
the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a Guarantor.
(c) The following is hereby waived: diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever.
(d) This Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the
Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors, or any custodian, Trustee,
liquidator or other similar official acting in relation to either the
Company or the Guarantors, any amount paid by either to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations
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guaranteed hereby until payment in full of all obligations guaranteed
hereby.
(g) As between the Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 of the
Indenture for the purposes of this Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event of
any declaration of acceleration of such obligations as provided in
Article 6 of the Indenture, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for
the purpose of this Note Guarantee.
(h) The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not
impair the rights of the Holders under the Guarantee.
(i) Pursuant to Section 11.02 of the Indenture, after giving effect to any
maximum amount and any other contingent and fixed liabilities that are
relevant under any applicable Bankruptcy or fraudulent conveyance
laws, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor
under Article 11 of the Indenture shall result in the obligations of
such Guarantor under its Note Guarantee not constituting a fraudulent
transfer or conveyance.
3. EXECUTION AND DELIVERY. The Guaranteeing Subsidiary agrees that the Note
Guarantee shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Note Guarantee.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) The Guaranteeing Subsidiary may not consolidate with or merge with or
into (whether or not the Guaranteeing Subsidiary is the surviving
Person) another corporation, Person or entity whether or not
affiliated with such Guaranteeing Subsidiary unless:
(i) subject to Section 11.05 of the Indenture, the Person formed by
or surviving any such consolidation or merger (if other than a
Guarantor or the Company) unconditionally assumes all the
obligations of the Guaranteeing Subsidiary, pursuant to a
supplemental indenture in form and substance reasonably
satisfactory to the Trustee, under the Notes, the Indenture and
the Note Guarantee on the terms set forth herein or therein; and
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(ii) immediately after giving effect to such transaction, no Default
or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in
form to the Trustee, of the Note Guarantee endorsed upon the Notes and
the due and punctual performance of all of the covenants and
conditions of the Indenture to be performed by the Guaranteeing
Subsidiary, such successor corporation shall succeed to and be
substituted for the Guaranteeing Subsidiary with the same effect as if
it had been named herein as a Guaranteeing Subsidiary. Such successor
corporation thereupon may cause to be signed any or all of the Note
Guarantees to be endorsed upon all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Note Guarantees so issued shall in
all respects have the same legal rank and benefit under the Indenture
as the Note Guarantees theretofore and thereafter issued in accordance
with the terms of the Indenture as though all of such Note Guarantees
had been issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained in the
Indenture or in any of the Notes shall prevent any consolidation or
merger of the Guaranteeing Subsidiary with or into the Company or
another Guarantor, or shall prevent any sale or conveyance of the
property of the Guaranteeing Subsidiary as an entirety or
substantially as an entirety to the Company or another Guarantor.
5. RELEASES.
(a) in the event of a sale or other disposition of all of the assets of
the Guaranteeing Subsidiary, by way of merger, consolidation or
otherwise, or a sale or other disposition of all to the capital stock
of the Guaranteeing Subsidiary, then the Guaranteeing Subsidiary (in
the event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the capital stock of the
Guaranteeing Subsidiary) or the corporation acquiring the property (in
the event of a sale or other disposition of all or substantially all
of the assets of the Guaranteeing Subsidiary) will be released and
relieved of any obligations under its Note Guarantee; provided that
the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of the Indenture, including
without limitation Section 4.10 of the Indenture. Upon delivery by the
Company to the Trustee of an Officers' Certificate and an Opinion of
Counsel to the effect that such sale or other disposition was made by
the Company in accordance with the provisions of the Indenture,
including without limitation Section 4.10 of the Indenture, the
Trustee shall execute
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any documents reasonably required in order to evidence the release of
the Guaranteeing Subsidiary from its obligations under its Note
Guarantee.
(b) If the Guaranteeing Subsidiary is not released from its obligations
under its Note Guarantee, then it shall remain liable for the full
amount of principal of and interest on the Notes and for the other
obligations of any Guarantor under the Indenture as provided in
Article 10 of the Indenture.
6. DESIGNATION OF NOTES. The Company hereby designates the Notes having an
aggregate principal amount of $50.0 million issued on the date hereof as "Series
E Notes." The Company hereby designates the Notes having an aggregate principal
amount of $50.0 million that will be issued subsequent to the date hereof in
exchange for the Series E Notes pursuant to an exchange offer registered under
the Act as "Series F Notes", pursuant to the Registration Rights Agreement.
7. AMENDMENT TO DEFINITION OF "GUARANTORS." Pursuant to the authority
granted to the Trustee by Section 9.01(a) of the Indenture to cure any
ambiguity, defect or inconsistency in the Indenture without the consent of any
Holder of a Note, the definition of "Guarantors" in the Indenture is amended and
supplemented to include the following to be inserted immediately subsequent to
the last word in the definition and prior to the period:
"and (iii) all Subsidiaries of the Company that execute a supplemental
indenture substantially in the form of the Supplemental Indenture attached as
Exhibit F hereto"
Such amendment and supplement to the definition of Guarantors shall
have retroactive effect to December 18, 1997, such that all of the Company's
Subsidiaries that signed the First Supplemental Indenture shall be Guarantors
under the Indenture.
8. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or the Guaranteeing Subsidiary under the Notes, any Note Guarantees, the
Indenture, the First Supplemental Indenture or this Second Supplemental
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of the Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
Commission that such a waiver is against public policy.
9. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
10. COUNTERPARTS. The parties may sign any number of copies of this Second
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
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11. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof
12. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Second
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: May 2, 2003
MATTRESS HOLDINGS INTERNATIONAL LLC
By: /s/ Kenneth L. Walker
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Name: Kenneth L. Walker
Title: Vice President, General Counsel and
Secretary
THE BANK OF NEW YORK
as Trustee
By: /s/ Dorothy Miller
---------------------------------------
Name: Dorothy Miller
Title:
SEALY MATTRESS COMPANY
By: /s/ Kenneth L. Walker
---------------------------------------
Name: Kenneth L. Walker
Title: Vice President, General Counsel and
Secretary