Exhibit 10.1
Sealy Mattress Company
$50,000,000 9.875% Senior Subordinated Notes due 2007
Purchase Agreement
April 25, 2003
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Banc of America Securities LLC
Wachovia Securities, Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Sealy Mattress Company, an Ohio corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Purchasers named in Schedule I hereto (the "Purchasers") an aggregate of
$50,000,000 principal amount of the Company's 9.875% Senior Subordinated Notes
due 2007 (the "Securities"). The Company is a wholly-owned subsidiary of Sealy
Corporation, a Delaware Corporation ("Parent"). The Company's obligations under
the Securities will be jointly and severally guaranteed on a senior subordinated
basis (the "Guarantees") by Parent and certain of the Company's U.S.
subsidiaries (the "Subsidiary Guarantors", and, together with Parent, the
"Guarantors"). When used herein, the term "Subsidiaries" shall mean all
subsidiaries of the Company existing as of the date hereof.
1. The Company and each of the Guarantors represent and warrant to,
and agree with, each of the Purchasers that:
(a) An offering circular, dated the date hereof (the "Offering
Circular"), including (i) the Parent's Annual Report on Form 10-K for the
fiscal year ended December 1, 2002 and (ii) the Parent's Quarterly Report
on Form 10-Q for the quarter ended March 2, 2003, which are attached to and
made a part of the Offering Circular, will be prepared in connection with
the offering of the Securities. Any reference to the Offering Circular
shall be deemed to refer to and include (i) any documents filed by the
Parent or the Company with the United States Securities and Exchange
Commission (the "Commission") pursuant to Section 13(a), 13(c) or 15(d) of
the United States Securities Exchange Act of 1934, as amended (the
"Exchange Act") after the date of the Offering Circular and (ii) any
Additional Issuer Information (as defined in Section 5(f)) furnished by the
Parent or the Company prior to the completion of the distribution of the
Securities; and all documents filed under the Exchange Act and so deemed to
be included in the Offering Circular or any amendment or supplement thereto
are hereinafter called the "Exchange Act Reports". The Exchange Act
Reports, when they were or are filed with the Commission, conformed or will
conform in all material respects to the applicable requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder. The Offering Circular and any amendments or supplements thereto
and the Exchange Act Reports did not and will not, as of their respective
dates, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in
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writing to the Company by a Purchaser through Goldman, Sachs & Co.
expressly for use therein;
(b) Neither the Parent, the Company nor any of the Subsidiaries
has sustained since the date of the latest audited financial statements
included in the Offering Circular any material loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Offering Circular; and, since the respective dates as of which information
is given in the Offering Circular, there has not been any change in the
capital stock or long-term debt of the Parent, the Company or any of the
Subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Parent, the Company and the Subsidiaries, otherwise than
as set forth or contemplated in the Offering Circular;
(c) The Parent, the Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them, in each case free and clear
of all liens, encumbrances and defects except such as are described in the
Offering Circular or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of
such property by the Parent, the Company and the Subsidiaries; and any real
property and buildings held under lease by the Parent, the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such property and buildings by the
Parent, the Company and the Subsidiaries;
(d) The Parent has been duly incorporated and is validly existing
as a corporation in good standing under the laws of Delaware, with power
and authority to own its properties and conduct its business as described
in the Offering Circular, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is subject
to no material liability or disability by reason of the failure to be so
qualified in any such jurisdiction.
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Ohio, with
power and authority to own its properties and conduct its business as
described in the Offering Circular, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification, or
is subject to no material liability or disability by reason of the failure
to be so qualified in any such jurisdiction; and each Subsidiary of the
Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of incorporation;
(f) The Parent has an authorized capitalization as set forth in
the Offering Circular, and all of the issued shares of capital stock of the
Parent have been duly and validly authorized and issued and are fully paid
and non-assessable; and all of the issued shares of capital stock of the
Company (except for directors' qualifying shares and except as otherwise
set forth in the Offering Circular) are owned directly by the Parent, free
and clear of all liens, encumbrances, equities or claims;
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(g) The Company has an authorized capitalization as set forth in
the Offering Circular, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable; and all of the issued shares of capital stock of each
Subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for directors' qualifying
shares and except as otherwise set forth in the Offering Circular) are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(h) This Agreement has been duly authorized, executed and
delivered by the Parent, the Company and the Subsidiaries;
(i) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company and the Guarantors, entitled to the
benefits provided by the indenture dated as of December 18, 1997, as
amended or supplemented through the Time of Delivery (as defined below) by
any supplemental indenture (the "Indenture") between the Company, the
Guarantors and The Bank of New York, as trustee (the "Trustee"), under
which they are to be issued; the Indenture has been duly authorized,
executed and delivered by the Company, the Guarantors and the Trustee, the
Indenture constitutes a valid and legally binding instrument, enforceable
in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and the
Securities and the Indenture conform to the descriptions thereof in the
Offering Circular and are in substantially the form previously delivered to
you;
(j) The Guarantees have been duly authorized by the Guarantors,
and when executed, authenticated, issued and delivered pursuant to this
Agreement and the Indenture, will constitute valid and legally binding
obligations of the Guarantors entitled to the benefits provided by the
Indenture, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles. The Guarantees conform to the descriptions
thereof in the Offering Circular;
(k) The registration rights agreement (the "Registration Rights
Agreement") has been duly authorized by the Company and the Guarantors, and
when executed, authenticated, issued and delivered by the Company and the
Guarantors, will constitute the valid and legally binding obligation of the
Company and the Guarantors, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles. Pursuant to the Registration
Rights Agreement, the Company will agree to file with the Commission, under
the circumstances set forth therein, (i) a registration statement under the
United States Securities Act of 1933, as amended (the "Act") relating to
another series of debt securities of the Company with terms substantially
identical to the Securities (the "Exchange Securities") to be offered in
exchange for the Securities (the "Exchange Offer"), and (ii) to the extent
required by the Registration Rights Agreement, a shelf registration
statement pursuant to Rule 415 of the Act relating to the resale by certain
holders of the Securities, and in each case, to use its best efforts to
cause such registration statements to be declared effective. The Exchange
Securities have been duly authorized for issuance by the Company, and when
issued and authenticated in accordance with the terms of the Indenture will
be the valid and legally binding obligations of the Company, entitled to
the benefits provided by the Indenture, enforceable in accordance
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with their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(l) The guarantees of the Company's obligations under the
Securities to be issued with terms substantially identical to the
Guarantees (the "Exchange Guarantees") to be offered in exchange for the
Guarantees in the Exchange Offer have been duly authorized by the
Guarantors, and when executed, authenticated, issued and delivered pursuant
to this Agreement and the Indenture; will constitute valid and legally
binding obligations of the Guarantors entitled to the benefits provided by
the Indenture, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles. The Exchange Guarantees will conform to the
descriptions thereof in the Offering Circular;
(m) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of
the Securities) will violate or result in a violation of Section 7 of the
Exchange Act, or any regulation promulgated thereunder, including, without
limitation, Regulations T, U, and X of the Board of Governors of the
Federal Reserve System;
(n) Prior to the date hereof, neither the Parent, the Company nor
any of its affiliates has taken any action which is designed to or which
has constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the Company
in connection with the offering of the Securities;
(o) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture,
the Registration Rights Agreement and this Agreement and the consummation
of the transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument material to the Parent, the
Company and the Subsidiaries, taken as a whole, to which the Parent, the
Company or any of the Subsidiaries is a party or by which the Parent, the
Company or any of the Subsidiaries is bound or to which any of the property
or assets of the Parent, the Company or any of the Subsidiaries is subject,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Parent, the Company or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Parent, the Company or any of
the Subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Parent and the Company of the
transactions contemplated by this Agreement or the Indenture, except for
the filing of a registration statement by the Company with the Commission
pursuant to the Act pursuant to Section 1(k) hereof and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Purchasers;
(p) Neither the Parent, the Company nor any of the Subsidiaries
is in violation of its Certificate of Incorporation or By-laws or in
default in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
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(q) The statements set forth in the Offering Circular under the
caption "Description of Notes", insofar as they purport to constitute a
summary of the terms of the Securities, and under the caption "Certain
United States Federal Tax Considerations", insofar as they purport to
describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(r) Other than as set forth in the Offering Circular, there are
no legal or governmental proceedings pending to which the Parent, the
Company or any of the Subsidiaries is a party or of which any property of
the Parent, the Company or any of the Subsidiaries is the subject which, if
determined adversely to the Parent, the Company or any of the Subsidiaries,
would individually or in the aggregate have a material adverse effect on
the current or future financial position, shareholders' equity or results
of operations of the Parent, the Company and the Subsidiaries; and, to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(s) When the Securities and Guarantees are issued and delivered
pursuant to this Agreement, the Securities and Guarantees will not be of
the same class (within the meaning of Rule 144A under the Act) as
securities or guarantees which are listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S.
automated inter-dealer quotation system;
(t) The Parent is subject to Section 13 or 15(d) of the Exchange
Act;
(u) None of Parent, the Company or the Subsidiaries is, or after
giving effect to the offering and sale of the Securities will be, an
"investment company", or an entity "controlled" by an "investment company",
as such terms are defined in the United States Investment Company Act of
1940, as amended (the "Investment Company Act");
(v) Neither the Parent, the Company, any of the Subsidiaries, nor
any person acting on its or their behalf has offered or sold the Securities
by means of any general solicitation or general advertising within the
meaning of Rule 502(c) under the Act or, with respect to Securities sold
outside the United States to non-U.S. persons (as defined in Rule 902 under
the Act), by means of any directed selling efforts within the meaning of
Rule 902 under the Act and the Parent, the Company, any affiliate of the
Parent, any affiliate of the Company and any person acting on its or their
behalf has complied with and will implement the "offering restriction"
within the meaning of such Rule 902;
(w) Within the preceding six months, neither the Parent, the
Company nor any other person acting on behalf of the Parent or the Company
has offered or sold to any person any Securities, or any securities of the
same or a similar class as the Securities, other than Securities offered or
sold to the Purchasers hereunder. The Parent and the Company will take
reasonable precautions designed to insure that any offer or sale, direct or
indirect, in the United States or to any U.S. person (as defined in Rule
902 under the Act) of any Securities or any substantially similar security
issued by the Parent or the Company, within six months subsequent to the
date on which the distribution of the Securities has been completed (as
notified to the Company by Goldman, Sachs & Co.), is made under
restrictions and other circumstances reasonably designed not to affect the
status of the offer and sale of the Securities in the United States and to
U.S. persons contemplated by this Agreement as transactions exempt from the
registration provisions of the Act;
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(x) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Parent, the Company and the Subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(y) The Parent, the Company and each of the Subsidiaries has
complied in all respects with all laws, regulations and orders applicable
to it or its businesses the violation of which would have a material
adverse effect upon the business, properties, financial condition,
earnings, or prospects of the Parent, the Company and the Subsidiaries
taken as a whole (a "Material Adverse Effect"); and
(z) The Parent, the Company and each of the Subsidiaries owns or
possesses or has the right to use the patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, the "Intellectual Property") presently employed by it in
connection with, and material to, collectively or in the aggregate, the
operation of the businesses now operated by it, and, except as defined in
the Offering Circular, none of the Parent, the Company or the Subsidiaries
has received any notice of infringement of or conflict with asserted rights
of others with respect to the foregoing which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Purchasers, and each of the Purchasers
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 97.0% of the gross proceeds thereof (which amount, $49,955,000, is
based on the offering price set forth on the cover page of the Offering
Circular), plus accrued interest, if any, from December 15, 2002 to the Time of
Delivery hereunder, the principal amount of Securities set forth opposite the
name of such Purchaser in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the
several Purchasers propose to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and the Offering Circular and each
Purchaser hereby represents and warrants to, and agrees with the Company that:
(a) It will offer and sell the Securities only to:(i) persons who
it reasonably believes are "qualified institutional buyers" ("QIBs") within
the meaning of Rule 144A under the Act in transactions meeting the
requirements of Rule 144A or, (ii) through its selling agents, outside the
United States, to non-U.S. persons in reliance on Regulation S under the
Act;
(b) It is an Institutional Accredited Investor; and
(c) It will not offer or sell the Securities by any form of
general solicitation or general advertising, including but not limited to
the methods described in Rule 502(c) under the Act.
4. (a) The Securities to be purchased by each Purchaser hereunder will
be represented by one or more definitive global Securities in book-entry form
which will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian. The Company will deliver the
Securities to Goldman, Sachs & Co., for the account of each Purchaser, against
payment by or on behalf of such Purchaser of the purchase price therefor by
certified or official bank check or checks, payable to the order of the Company
in Federal (same day) funds, by
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causing DTC to credit the Securities to the account of Goldman, Sachs & Co. at
DTC. The Company will cause the certificates representing the Securities to be
made available to Goldman, Sachs & Co. for checking at least twenty-four hours
prior to the Time of Delivery (as defined below) at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on May 2, 2003 or
such other time and date as Goldman, Sachs & Co. and the Company may agree upon
in writing. Such time and date are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Purchasers pursuant to Section 7 hereof, will be delivered at such time and date
at the offices of Latham & Watkins LLP, 885 Third Avenue, New York, NY 10022
(the "Closing Location"), and the Securities will be delivered at the Designated
Office, all at the Time of Delivery. A meeting will be held at the Closing
Location at 12:00 noon, New York City time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. The Company and each of the Guarantors agrees with each of the
Purchasers:
(a) To prepare the Offering Circular in a form approved by you;
to make no amendment or any supplement to the Offering Circular which shall
be disapproved by you promptly after reasonable notice thereof; and to
furnish you with copies thereof;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under
the securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) To furnish the Purchasers with copies of the Offering
Circular and each amendment or supplement thereto signed by an authorized
officer of the Company with the independent accountants' report(s) in the
Offering Circular, and any amendment or supplement containing amendments to
the financial statements covered by such report(s), signed by the
accountants, and additional copies thereof in such quantities as you may
from time to time reasonably request, and if, at any time prior to the
expiration of nine months after the date of the Offering Circular, any
event shall have occurred as a result of which the Offering Circular as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made when such Offering Circular is delivered, not misleading, or, if
for any other reason it shall be necessary or desirable during such same
period to amend or supplement the Offering Circular, to notify you and upon
your request to prepare and furnish without charge to each Purchaser and to
any dealer in securities as many copies as you may from time to time
reasonably request of an amended Offering Circular or a supplement to the
Offering Circular which will correct such statement or omission or effect
such compliance;
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(d) During the period beginning from the date hereof and
continuing until the date six months after the Time of Delivery, not to
offer, sell contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to
the Securities;
(e) Not to be or become, at any time prior to the expiration of
three years after the Time of Delivery, an open-end investment company,
unit investment trust, closed-end investment company or face-amount
certificate company that is or is required to be registered under Section 8
of the Investment Company Act;
(f) At any time when the Company is not subject to Section 13 or
15(d) of the Exchange Act, for the benefit of holders from time to time of
Securities, to furnish at its expense, upon request, to holders of
Securities and prospective purchasers of securities information (the
"Additional Issuer Information") satisfying the requirements of subsection
(d)(4)(i) of Rule 144A under the Act;
(g) If requested by you, to use its best efforts to cause such
Securities to be eligible for the PORTAL trading system of the National
Association of Securities Dealers, Inc.;
(h) Until such time as the Company has Consummated (as defined in
the Registration Rights Agreement) an Exchange Offer (as defined in the
Registration Rights Agreement), to furnish to the holders of the Securities
as soon as practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, shareholders' equity
and cash flows of the Parent, the Company and the Subsidiaries certified by
independent public accountants) and, as soon as practicable after the end
of each of the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the date of the Offering Circular),
consolidated summary financial information of the Parent, the Company and
the Subsidiaries for such quarter in reasonable detail;
(i) Until such time as the Company has Consummated an Exchange
Offer, during a period of five years from the date of the Offering
Circular, to furnish to you copies of all reports or other communications
(financial or other) furnished to shareholders of the Parent or the
Company, and to deliver to you (i) as soon as they are available, copies of
any reports and financial statements furnished to or filed with the
Commission or any securities exchange on which the Securities or any class
of securities of the Parent or the Company is listed; and (ii) such
additional information concerning the business and financial condition of
the Parent or the Company as you may from time to time reasonably request
(such financial statements to be on a consolidated basis to the extent the
accounts of the Parent, the Company and the Subsidiaries are consolidated
in reports furnished to the stockholders generally or to the Commission);
and
(j) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Offering Circular under the caption "Use of Proceeds".
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6. The Company and each of the Guarantors covenant and agree with the
several Purchasers that the Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the issue of the Securities and all other
expenses in connection with the preparation, printing and filing of the Offering
Circular and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Purchasers and dealers; (ii) the cost of
printing or producing any Agreement among Purchasers, this Agreement, the
Indenture, the Blue Sky Memoranda, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Purchasers in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; (iv) any fees charged
by securities rating services for rating the Securities; (v) the cost of
preparing the Securities; (vi) the fees and expenses of the Trustee and any
agent of the Trustee and the fees and disbursements of counsel for the Trustee
in connection with the Indenture and the Securities and (vii) all other costs
and expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, and Sections 8 and 11 hereof,
the Purchasers will pay all of their own costs and expenses, including the fees
of their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Purchasers hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Parent, the Company and the Subsidiaries herein are, at
and as of the Time of Delivery, true and correct, the condition that the Parent,
the Company and the Subsidiaries shall have performed all of their obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) Latham & Watkins LLP, counsel for the Purchasers, shall have
furnished to you such opinion or opinions, dated the Time of Delivery, with
respect to such matters as you may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(b) Kirkland & Ellis, counsel for the Company, shall have
furnished to you their written opinion, dated the Time of Delivery,
substantially in the form of Exhibit A hereto;
(c) Kenneth L. Walker, in-house counsel to Sealy Corporation,
shall have furnished to Kirkland & Ellis his written opinion, dated the
Time of Delivery, in form and substance satisfactory to Kirkland & Ellis,
to the effect that:
(i) Each of the Purchase Agreement and the Registration
Rights Agreement has been duly authorized, executed and delivered
by the Company;
(ii) The Notes, the Guarantees and the Indenture have been
duly authorized, executed, authenticated and delivered by the
Company; and
(iii) the amendment to the Credit Agreement has been duly
authorized, executed and delivered by the Company.
(d) PricewaterhouseCoopers LLP shall have furnished to you a
letter or letters, dated the date of the Offering Circular and the Time of
Delivery, in form and substance satisfactory to you;
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(e) Neither the Parent, the Company nor any of the Subsidiaries
shall have sustained since the date of the latest audited financial
statements included in the Offering Circular any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Offering Circular, and (ii) since the respective dates as of which
information is given in the Offering Circular (exclusive of any amendment
or supplement thereto on or after the date of this Agreement) there shall
not have been any change in the capital stock or long-term debt of the
Company or any of the Subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Parent, the Company and the Subsidiaries, otherwise than
as set forth or contemplated in the Offering Circular, the effect of which,
in any such case described in clause (i) or (ii), is in the judgment of the
Purchasers so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the Securities
on the terms and in the manner contemplated in this Agreement and in the
Offering Circular;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Parent's or the Company's debt
securities by any "nationally recognized statistical rating organization",
as that term is defined by the Commission for purposes of Rule 436(g)(2)
under the Act, and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Parent's or the Company's debt
securities;
(g) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities declared by either Federal or
New York State authorities or a material disruption in commercial banking
or securities settlement or clearance services in the United States; (iv)
the outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war or (v)
the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iv) or (v) in the judgment of
Goldman, Sachs & Co. makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities on the terms and in
the manner contemplated in the Offering Circular;
(h) The Securities shall have been designated for trading on
PORTAL;
(i) The Company and the Guarantors shall have furnished or caused
to be furnished to you at the Time of Delivery certificates of officers of
the Company and the Guarantors satisfactory to you as to the accuracy of
the representations and warranties of the Company and the Guarantors herein
at and as of such Time of Delivery, as to the performance by the Company
and the Guarantors of all of their obligations hereunder to be performed at
or prior to such Time of Delivery, as to the matters set forth in
subsections (e) and (f) of this Section and as to such other matters as you
may reasonably request;
(j) The Company and the Guarantors shall have entered into the
Registration Rights Agreement and you shall have received executed
counterparts thereof;
(k) The Parent shall have consummated the amendment to the Credit
Agreement (as described and defined in the Offering Circular) and evidence
as to such, satisfactory to the Purchasers and their counsel, shall have
been delivered to you; and
Page 10
(l) Each Guarantor that was not a Guarantor under the Indenture
and was not a party to the Supplemental Indenture, dated April 10, 2001,
among the guarantors listed on the signature pages thereto and the Trustee,
shall have furnished or cause to be furnished to you at the Time of
Delivery a supplemental indenture in the form and substance as provided in
Exhibit F to the Indenture.
8. (a) The Company and each of the Guarantors will indemnify and hold
harmless each Purchaser against any losses, claims, damages or liabilities,
joint or several, to which such Purchaser may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Offering Circular, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact necessary to make the
statements therein not misleading, and will reimburse each Purchaser for any
legal or other expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and each of the Guarantors shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the Offering Circular
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Purchaser through Goldman,
Sachs & Co. expressly for use therein.
(b) Each Purchaser will indemnify and hold harmless the Company and
each of the Guarantors against any losses, claims, damages or liabilities to
which the Company or any of the Guarantors may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Offering Circular, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Offering Circular or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such Purchaser through Goldman, Sachs & Co. expressly for use
therein; and will reimburse the Company or any of the Guarantors for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be
Page 11
sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and each of the Guarantors on the one
hand and the Purchasers on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and each of the Guarantors on the one hand and
the Purchasers on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and each of the Guarantors on the one hand and
the Purchasers on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Purchasers, in each case as set forth in the Offering Circular. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
and each of the Guarantors on the one hand or the Purchasers on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and each of the
Guarantors and the Purchasers agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Purchasers were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Purchaser shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to investors were offered to investors exceeds the amount of any
damages which such Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. The
Purchasers' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company and each of the Guarantors under
this Section 8 shall be in addition to any liability which the Company and each
of the Guarantors may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Purchaser within the
meaning of the Act; and the obligations of the Purchasers under this Section 8
shall be in addition to any liability which the respective Purchasers may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Parent and to each person, if any, who controls the
Parent within the meaning of the Act.
Page 12
9. (a) If any Purchaser shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to purchase such
Securities on the terms contained herein. If within thirty-six hours after such
default by any Purchaser you do not arrange for the purchase of such Securities,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you to
purchase such Securities on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Securities, or the Company notifies you that it has so arranged
for the purchase of such Securities, you or the Company shall have the right to
postpone the Time of Delivery for a period of not more than seven days, in order
to effect whatever changes may thereby be made necessary in the Offering
Circular, or in any other documents or arrangements, and the Company agrees to
prepare promptly any amendments to the Offering Circular which in your opinion
may thereby be made necessary. The term "Purchaser" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Purchaser to purchase the principal
amount of Securities which such Purchaser agreed to purchase hereunder and, in
addition, to require each non-defaulting Purchaser to purchase its pro rata
share (based on the principal amount of Securities which such Purchaser agreed
to purchase hereunder) of the Securities of such defaulting Purchaser or
Purchasers for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Purchaser from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of all the Securities, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Purchasers to purchase
Securities of a defaulting Purchaser or Purchasers, then this Agreement shall
thereupon terminate, without liability on the part of any non-defaulting
Purchaser or the Company, except for the expenses to be borne by the Company and
the Purchasers as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Purchaser from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Guarantors and the several
Purchasers, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Purchaser or any controlling person of any
Purchaser, or the Parent or the Company or any of the Subsidiaries, or any
officer or director or controlling person of the Parent or the Company or any of
the Subsidiaries, and shall survive delivery of and payment for the Securities.
Page 13
11. If this Agreement shall be terminated pursuant to Section 9
hereof, the Company and the Guarantors shall not then be under any liability to
any Purchaser except as provided in Sections 6 and 8 hereof; but, if for any
other reason, the Securities or the Guarantees are not delivered by or on behalf
of the Company and the Guarantors as provided herein, the Company will reimburse
the Purchasers through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Purchasers in making preparations for the purchase, sale and delivery of the
Securities, but the Company and the Guarantors shall then be under no further
liability to any Purchaser except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail, telex or
facsimile transmission to you in care of Goldman, Sachs & Co., 85 Broad Street,
New York, New York 10004, Attention: Registration Department and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Company set forth in the Offering Circular, Attention:
Secretary; provided, however, that any notice to a Purchaser pursuant to Section
8(c) hereof shall be delivered or sent by mail, telex or facsimile transmission
to such Purchaser at its address set forth in its Purchasers' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Purchasers, the Parent, the Company, the Subsidiaries and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Parent and each person who controls the Parent or any Purchaser, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Purchaser shall be
deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
17. The Company is authorized, subject to applicable law, to disclose
any and all aspects of this potential transaction that are necessary to support
any U.S. Federal income tax benefits expected to be claimed with respect to such
transaction, and all materials of any kind (including tax opinions and other tax
analyses) related to those benefits, without the Purchasers imposing any
limitation of any kind.
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and each of the Purchasers plus one for each
counsel counterparts hereof, and upon the acceptance hereof by you, on behalf of
each of the Purchasers, this letter and such acceptance hereof shall constitute
a binding agreement between each of the Purchasers and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the
Page 14
authority set forth in a form of Agreement among Purchasers, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
[Purchase Agreement Signature Page(s) Follow]
Page 15
Very truly yours,
Issuer:
Sealy Mattress Company
By: /s/ Kenneth L. Walker
--------------------------------------------------
Name: Kenneth L. Walker
---------------------------------------------
Title: Vice President, General Counsel & Secretary
--------------------------------------------
Guarantors:
Sealy Corporation
By: /s/ Kenneth L. Walker
--------------------------------------------------
Name: Kenneth L. Walker
---------------------------------------------
Title: Vice President, General Counsel & Secretary
--------------------------------------------
Sealy Mattress Company of Puerto Rico
By: /s/ Kenneth L. Walker
--------------------------------------------------
Name: Kenneth L. Walker
---------------------------------------------
Title: Vice President, General Counsel & Secretary
--------------------------------------------
Ohio-Sealy Mattress Manufacturing Co. Inc.
By: /s/ Kenneth L. Walker
--------------------------------------------------
Name: Kenneth L. Walker
---------------------------------------------
Title: Vice President, General Counsel & Secretary
--------------------------------------------
Purchase Agreement Signature Page 1
Ohio-Sealy Mattress Manufacturing Co.
By: /s/ Kenneth L. Walker
--------------------------------------------------
Name: Kenneth L. Walker
---------------------------------------------
Title: Vice President, General Counsel & Secretary
--------------------------------------------
Sealy Mattress Company of Michigan, Inc.
By: /s/ Kenneth L. Walker
--------------------------------------------------
Name: Kenneth L. Walker
---------------------------------------------
Title: Vice President, General Counsel & Secretary
--------------------------------------------
Sealy Mattress Company of Kansas City, Inc.
By: /s/ Kenneth L. Walker
--------------------------------------------------
Name: Kenneth L. Walker
---------------------------------------------
Title: Vice President, General Counsel & Secretary
--------------------------------------------
Sealy of Maryland and Virginia, Inc.
By: /s/ Kenneth L. Walker
--------------------------------------------------
Name: Kenneth L. Walker
---------------------------------------------
Title: Vice President, General Counsel & Secretary
--------------------------------------------
Sealy Mattress Company of Illinois
By: /s/ Kenneth L. Walker
--------------------------------------------------
Name: Kenneth L. Walker
---------------------------------------------
Title: Vice President, General Counsel & Secretary
--------------------------------------------
Purchase Agreement Signature Page 2
A. Brandwein & Co.
By: /s/ Kenneth L. Walker
--------------------------------------------------
Name: Kenneth L. Walker
---------------------------------------------
Title: Vice President, General Counsel & Secretary
--------------------------------------------
Sealy Mattress Company of Albany, Inc.
By: /s/ Kenneth L. Walker
--------------------------------------------------
Name: Kenneth L. Walker
---------------------------------------------
Title: Vice President, General Counsel & Secretary
--------------------------------------------
Sealy of Minnesota, Inc.
By: /s/ Kenneth L. Walker
--------------------------------------------------
Name: Kenneth L. Walker
---------------------------------------------
Title: Vice President, General Counsel & Secretary
--------------------------------------------
Sealy Mattress Company of Memphis
By: /s/ Kenneth L. Walker
--------------------------------------------------
Name: Kenneth L. Walker
---------------------------------------------
Title: Vice President, General Counsel & Secretary
--------------------------------------------
North American Bedding Company
By: /s/ Kenneth L. Walker
--------------------------------------------------
Name: Kenneth L. Walker
---------------------------------------------
Title: Vice President, General Counsel & Secretary
--------------------------------------------
Mattress Holdings International LLC
By: /s/ Kenneth L. Walker
--------------------------------------------------
Name: Kenneth L. Walker
---------------------------------------------
Title: Vice President, General Counsel & Secretary
--------------------------------------------
Purchase Agreement Signature Page 3
Sealy, Inc.
By: /s/ Kenneth L. Walker
-----------------------------------------
Name: Kenneth L. Walker
------------------------------------
Title: Vice President, General Counsel
& Secretary
-----------------------------------
The Ohio Mattress Company Licensing
and Components Group
By: /s/ Kenneth L. Walker
-----------------------------------------
Name: Kenneth L. Walker
------------------------------------
Title: Vice President, General Counsel
& Secretary
-----------------------------------
Sealy Mattress Manufacturing Company, Inc.
By: /s/ Kenneth L. Walker
-----------------------------------------
Name: Kenneth L. Walker
------------------------------------
Title: Vice President, General Counsel
& Secretary
-----------------------------------
Sealy-Korea, Inc.
By: /s/ Kenneth L. Walker
-----------------------------------------
Name: Kenneth L. Walker
------------------------------------
Title: Vice President, General Counsel
& Secretary
-----------------------------------
Sealy Technology LLC
By: /s/ Kenneth L. Walker
-----------------------------------------
Name: Kenneth L. Walker
------------------------------------
Title: Corporate Vice President, General
Counsel & Secretary
-----------------------------------
Sealy Real Estate, Inc.
By: /s/ Kenneth L. Walker
-----------------------------------------
Name: Kenneth L. Walker
------------------------------------
Title: Vice President, General Counsel
& Secretary
-----------------------------------
Purchase Agreement Signature Page 4
Sealy Texas Management, Inc.
By: /s/ Kenneth L. Walker
-----------------------------------------
Name: Kenneth L. Walker
------------------------------------
Title: Vice President,
General Counsel & Secretary
-----------------------------------
Sealy Texas Holdings LLC
By: /s/ Kenneth L. Walker
-----------------------------------------
Name: Kenneth L. Walker
------------------------------------
Title: Corporate Vice President,
General Counsel & Secretary
-----------------------------------
Sealy Texas L.P.
By: /s/ Kenneth L. Walker
-----------------------------------------
Name: Kenneth L. Walker
------------------------------------
Title: Corporate Vice President,
General Counsel & Secretary
-----------------------------------
Western Mattress Company
By: /s/ Kenneth L. Walker
-----------------------------------------
Name: Kenneth L. Walker
------------------------------------
Title: Vice President,
General Counsel & Secretary
-----------------------------------
Purchase Agreement Signature Page 5
Accepted as of the date hereof:
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Banc of America Securities LLC
Wachovia Securities, Inc.
By: /s/ Goldman, Sachs & Co.
-------------------------------
(Goldman, Sachs & Co.)
Purchase Agreement Signature Page 6
SCHEDULE I
Principal Amount of
Purchaser Securities to be Purchased
- --------- --------------------------
Goldman, Sachs & Co............................... $16,650,000
J.P. Morgan Securities Inc........................ 16,650,000
Banc of America Securities LLC.................... 8,350,000
Wachovia Securities, Inc.......................... 8,350,000
Total......................................... $50,000,000
===========
Schedule I - 1