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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934

Date of report (Date of earliest event reported): April 6, 2021

TEMPUR SEALY INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Delaware001-3192233-1022198
(State or other jurisdiction of incorporation)(Commission File Number)(I.R.S. Employer Identification No.)

1000 Tempur Way
Lexington, Kentucky  40511
(Address of principal executive offices) (Zip Code)

(800) 878-8889
(Registrant’s telephone number, including area code)

N/A
(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each classTrading Symbol(s)Name of exchange on which registered
Common Stock, $0.01 par valueTPXNew York Stock Exchange

Indicate by check mark whether the Registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company 

If an emerging growth company, indicate by check mark if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐






Item 1.01. Entry into a Material Definitive Agreement
On April 6, 2021, Tempur Sealy International, Inc. (the "Company") and certain of its subsidiaries amended and restated its accounts receivable securitization facility (the “Transaction”) with respect to certain indebtedness and other obligations owed to subsidiaries of the Company arising from the sale of goods or provision of services by these subsidiaries (the “Receivables”). In connection with the Transaction, the Company, Tempur Sealy Receivables, LLC (the “Borrower”), Tempur-Pedic North America, LLC (“TPNA”) and Sealy Mattress Manufacturing Company, LLC (“SMMC” and together with TPNA, the “Originators”) entered into Omnibus Amendment No. 2 (the "Omnibus Amendment") with Wells Fargo Bank, National Association, as administrative agent and as lender (“Wells Fargo” or a "Lender") and Sumitomo Mitsui Banking Corporation ("SMBC" or a "Lender"). As part of the Omnibus Amendment, the Company and the Borrower entered into an Amended and Restated Credit Agreement (the "Amended Credit Agreement") with Wells Fargo, as administrative agent and Lender and SMBC, as Lender.
The Borrower is a wholly owned special purpose subsidiary of TPNA. The Amended Credit Agreement provides for revolving loans (the “Loans”) to be made from time to time by the Lender to the Borrower, in a maximum amount that varies over the course of the year based on seasonality subject to an overall limit of $200 million. The Loans will bear interest at a floating rate initially equal to a one month LIBOR index plus 70 basis points. The LIBOR replacement provisions in the Amended Credit Agreement provide for customary arrangements to transition to the use of rates based on the secured overnight financing rate (“SOFR”) administered by the Federal Reserve Bank of New York or an alternative benchmark rate determined by the relevant governmental authority or the then-prevailing market convention.
In connection with the Transaction and pursuant to the Omnibus Amendment which amended and restated the receivables sale agreements, the Originators transfer and assign from time to time, on a “true sale” basis, certain Receivables directly or indirectly to the Borrower, with SMMC transferring and assigning Receivables to TPNA and TPNA transferring these and other Receivables to the Borrower. The Company has guaranteed the obligations of the Originators under these amended and restated receivables sale agreements. In connection with each such transfer and assignment, the Borrower may request advances (the “Advances”) in respect of the Loans, subject to the satisfaction of the conditions precedent set forth in the Amended Credit Agreement. The Borrower will use the proceeds of the Advances to finance the acquisition of Receivables by the Borrower, and the Originators will use proceeds from the sale of Receivables to the Borrower for general corporate purposes, including the origination of additional Receivables by the Originators and payment of expenses of the Transaction. Amounts under the Amended Credit Agreement may be borrowed, repaid and re-borrowed from time to time until the maturity date of April 6, 2023. Prior to the maturity date, the Borrower is only required to repay principal if borrowings exceed the determined borrowing base, unless an Amortization Event (as defined in the Amended Credit Agreement) occurs. Voluntary prepayments and commitment reductions under the Amended Credit Agreement are permitted at any time without payment of any prepayment fee upon proper notice and subject to minimum dollar amounts.

The obligations of the Borrower under the Amended Credit Agreement will be secured by the Receivables and certain related rights, including rights under the amended and restated receivables sale agreements with the Originators. The Borrower will have no material assets other than the Receivables, which will continue to be owned by the Borrower and will continue to be reflected as assets on the Company’s consolidated balance sheet. The Amended Credit Agreement contains customary events of default (referred to in the Amended Credit Agreement as “Facility Termination Events”, and which are in some cases subject to certain exceptions, thresholds, notice requirements and grace periods), including, but not limited to, non-payment of principal or interest or other amounts, misrepresentations, failure to perform or observe covenants, cross-defaults with certain other indebtedness or material agreements, certain change in control events, voluntary or involuntary bankruptcy proceedings, certain judgments or decrees, failure of the Amended Credit Agreement or other loan documents to be in full force and effect, certain ERISA events and certain judgments. The Amended Credit Agreement also contains certain representations, warranties and conditions, in each case as set forth in the Amended Credit Agreement.

Copies of the Omnibus Amendment, the Amended Credit Agreement and the two amended and restated receivables sale agreements with the Originators are included as Exhibits 10.1-10.4 to this Current Report on Form 8-K. The foregoing descriptions of the Omnibus Amendment, the Amended Credit Agreement and amended and restated receivables sale agreements do not purport to be complete and are qualified in their entirety by reference to Exhibits 10.1-10.4 to this Current Report on Form 8-K.

Each Lender and its affiliates have various relationships with the Company involving the provision of financial services from time to time, including other credit facilities with the Company and its affiliates, investment banking, cash management, equipment leasing and other services.




Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information provided in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
Number
Description
10.1
10.2
10.3
10.4
104Cover page interactive data file (embedded within the Inline XBRL document).





SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date:  April 7, 2021
Tempur Sealy International, Inc.
By:/s/ Bhaskar Rao
Name:Bhaskar Rao
Title:Executive Vice President & Chief Financial Officer






























Document

OMNIBUS AMENDMENT NO. 2
THIS OMNIBUS AMENDMENT NO. 2 (this “Amendment), dated as of April 6, 2021, is entered into by and among Tempur Sealy International, Inc., a Delaware corporation (“TPX”), Tempur Sealy Receivables, LLC (“Borrower”), Tempur Pedic North America, LLC (“TPNA”), Sealy Mattress Manufacturing Company, LLC (“SMMC”), Sumitomo Mitsui Banking Corporation (“SMBC” or a “Lender”), and Wells Fargo Bank, National Association, individually (“Wells Fargo” or a “Lender”) and as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), and constitutes:
i.The first amendment and restatement of that certain Receivables Sale Agreement, dated as of April 12, 2017 (the “RSA”), by and between SMMC and TPNA;
ii.The first amendment and restatement of that certain Receivables Sale and Contribution Agreement, dated as of April 12, 2017, by and between TPNA and Borrower (the “RSCA), by and between TPNA and Borrower;
iii.The first amendment and restatement of that certain Credit and Security Agreement, dated as of April 12, 2107 (prior to the effectiveness hereof, the “Existing CSA”), by and among Borrower, TPX as Master Servicer, and Wells Fargo, as sole Lender; and
iv.The first amendment and restatement of that certain Performance Undertaking, dated as of April 12, 2017 (prior to the effectiveness hereof, the “Existing Undertaking”) executed by TPX, as the Performance Guarantor, in favor of TPNA and its successors and assigns.
PRELIMINARY STATEMENTS
On the terms and subject to the conditions set forth herein: (a) SMMC and TPNA wish to amend and restated the RSA as hereinafter provided, (b) TPNA and Borrower wish to amend and restate the RSCA as hereinafter provided, (c) SMBC wishes to join the Existing CSA as a Lender and simultaneously with such joinder, the parties to the Existing CSA and SMBC wish to amend and restate the Existing CSA as hereinafter provided, (d) the Performance Guarantor, TPNA, Borrower and the Administrative Agent wish to amend and restate the Existing Undertaking as hereinafter provided, and (e) the other parties hereto wish to consent to each of the foregoing amendment and restatements.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:
1. Definitions. Capitalized terms used in the amendments to the RSA set forth below and not otherwise defined herein are used with the meanings attributed thereto in the RSA; capitalized terms used in the amendments to the RCSA set forth below and not otherwise defined herein are used with the meanings attributed thereto in the RCSA; capitalized terms used in the amendment and restatement of the Existing CSA set forth below and not otherwise defined herein are used with the meanings attributed thereto in amended and restated documents set forth in Annexes A, B, C and D hereto.
2. Amendment and Restatement of RSA. Effective as of the Second Omnibus Effective Date:
2.1. The RSA is hereby amended and restated in its entirety to read as set forth in Annex A hereto.
2.2. Each of the parties hereto consents to the amendment and restatement pursuant to Section 2.1.
3. Amendment and Restatement of RSCA. Effective as of the Second Omnibus Effective Date:
3.1. The RSCA is hereby amended and restated in its entirety to read as set forth in Annex B hereto.
3.2. Each of the parties hereto consents to the amendment and restatement pursuant to Section 3.1.
4. Joinder of SMBC and Amendment and Restatement of the Existing CSA. Effective as of the Second Omnibus Effective Date:
4.1. The Existing CSA is hereby amended and restated in its entirety to read as set forth in Annex C hereto (as so amended and restated, the “CSA”), and simultaneously with such amendment and restatement, SMBC hereby joins the CSA as a Lender with a Commitment in the variable amounts set forth in the CSA, agrees that it shall be bound by all of the terms, conditions and provisions thereof, and shall be deemed to be a party thereto (as if it were an original signatory thereto). SMBC hereby acknowledges that it has received copies of the RSA and the other Transaction Documents.
4.2. From and after the Second Omnibus Effective Date, all collateral held by Wells Fargo under the Existing CSA and related Transaction Documents shall be deemed to be held by Wells Fargo in its capacity as Administrative Agent under the CSA for the benefit of the Lenders. On the Second Omnibus Effective Date, the Administrative Agent is hereby authorized and directed to file amendments to all existing financing statements of record in connection with the RSA, the RSCA and the Existing CSA to reflect the change in the secured party of record to “Wells Fargo Bank, N.A., as Administrative Agent.”
4.3. Each of the parties hereto consents to the amendment and restatement pursuant to Section 4.1 hereof
5. Amendment and Restatement of the Existing Undertaking.
5.1. Effective as of the Second Omnibus Effective Date, the Performance Undertaking is hereby amended and restated in its entirety to read as set forth in Annex D hereto.
5.2. Each of the parties hereto consents to the amendment and restatement pursuant to Section 5.1 hereof
6. Representations and Warranties. In order to induce the Administrative Agent and the Lenders to enter into this Amendment, each of Borrower, TPNA, SMMC and TPX hereby agrees that this Amendment constitutes a Transaction Document and hereby represents and warrants to the Administrative Agent and the Lenders that each of its representations and warranties set forth in the Transaction Documents to which it is a party is true and correct in all respects on and as of the date hereof as though made on and as of the date hereof (except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all respects as of such earlier date), other than, in each case, any breach of any such representation or warranty that could not reasonably be expected to have an Originator Material Adverse Effect or a Material Adverse Effect
7. Conditions Precedent and Subsequent.
7.1. Conditions Precedent. This Amendment shall become effective as of the date hereof (the “Second Omnibus Effective Date”) upon satisfaction of each of the following conditions precedent:
(a) The Administrative Agent shall have received counterparts of this Amendment, duly executed by each of the parties hereto.
(b) The Administrative Agent shall have received counterparts of the Lenders’ Fee Letter and the Administrative Agent’s Fee Letter, duly executed by each of the respective parties thereto, and payment of all Fees specified to be due and payable thereunder on the date hereof.
(c) The Administrative Agent shall have received bring-down and reliance letters with respect to each of the opinions delivered on the Closing Date of the Existing CSA, addressed to the Administrative Agent and each of the Lenders.
(d) The Administrative Agent shall have received amendments to each of the UCC-1 financing statements filed against SMMC, TPNA or Borrower in connection the Existing CSA reflecting the secured party of record as “Wells Fargo Bank, N.A., as Administrative Agent” and a new “all-asset” UCC1 naming Borrower, as debtor/seller, and the Administrative Agent, as total assignee of the assignor secured party/buyer.
(e) If applicable, the Administrative Agent shall have received updated incumbency certificates reflecting the name, title and specimen signature of each of TPX’s, SMMC’s, TPNA’s and Borrower’s authorized signatories for the Transaction Documents to which they are parties.
7.2. Condition Subsequent. Not later than May 6, 2021, the Administrative Agent shall have received amendments to or assignments of each of the Control Agreements reflecting the secured party of record as “Wells Fargo Bank, N.A., as Administrative Agent,” or, unless waived in the Required Lenders’ sole discretion, a Facility Termination Event shall be deemed to have occurred.
8. Miscellaneous.
8.1. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH SHALL APPLY HERETO) EXCEPT TO THE EXTENT THAT THE PERFECTION OF THE ADMINISTRATIVE AGENT’S SECURITY INTEREST IN THE COLLATERAL OR REMEDIES HEREUNDER IN RESPECT THEREOF ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
8.2. EACH LOAN PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER, IN ANY WAY RELATING TO THIS AMENDMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF AND EACH OF THE LOAN PARTIES IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE LOAN PARTIES AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AMENDMENT OR IN ANY OTHER TRANSACTION DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AMENDMENT OR ANY OTHER TRANSACTION DOCUMENT AGAINST BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING OT THIS AMENDMENT OR ANY OTHER TRANSACTION DOCUMENT IN ANY SUCH COURT. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
8.3. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AMENDMENT, ANY DOCUMENT EXECUTED BY ANY LOAN PARTY PURSUANT TO THE CSA AS AMENDED BY THIS AMENDMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER. This Amendment and each other Transaction Document contain the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and thereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof superseding all prior oral or written understandings.
8.4. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns (including any trustee in bankruptcy).
8.5. Except as expressly amended or amended and restated hereby, each of the Transaction Documents remains unaltered and in full force and effect and is hereby ratified and confirmed.
8.6. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. To the fullest extent permitted by applicable law, delivery of an executed counterpart of a signature page of this Amendment by telefacsimile or electronic image scan transmission (such as a “pdf” file) will be effective to the same extent as delivery of a manually executed original counterpart of this Amendment. Any provisions of this Amendment which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their duly authorized officers as of the date hereof.
Tempur Sealy Receivables, LLC, as Borrower
By: Tempur-Pedic North America, LLC, its Manager

By: __/s/ James M. Schockett_________

Name: James M. Schockett

Title: Vice President and Treasurer


Tempur Sealy International, Inc., as Performance Guarantor

By: __/s/ James M. Schockett_________

Name: James M. Schockett

Title: Vice President and Treasurer


Tempur Pedic North America, LLC

By: __/s/ James M. Schockett_________

Name: James M. Schockett

Title: Vice President and Treasurer


SEALY MATTRESS MANUFACTURING COMPANY, LLC

By: __/s/ James M. Schockett_________

Name: James M. Schockett

Title: Vice President and Treasurer
WELLS FARGO BANK, NATIONAL ASSOCIATION, individually as a Lender and as Administrative Agent for the Lenders

By: ___/s/ Jonathan Davis______

Name: Jonathan Davis
Title: Assistant Vice President







SUMITOMO MITSUI BANKING CORPORATION, individually as a Lender


By: /s/ Rosa Pritsch

Name: Rosa Pritsch
Title: Director



ANNEXES FOLLOW


Document



ANNEX A TO OMNIBUS AMENDMENT NO. 2

AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
Dated as of April 6, 2021

by and between

Sealy Mattress Manufacturing Company, LLC,
as the seller,

and

Tempur-Pedic North America, LLC,
as the purchaser





TABLE OF CONTENTS
Page
Article I Amounts and Terms.......................................................................................................... 2
Section 1.1. Purchase of Receivables Assets......................................................................... 2
Section 1.2. Payment for the Purchase................................................................................. 2
Section 1.3. Purchase Price Credit Adjustments................................................................... 3
Section 1.4. Payments........................................................................................................... 4
Section 1.5. Transfer of Records........................................................................................... 4
Section 1.6. Characterization................................................................................................ 4
Article II Representations and Warranties..................................................................................... 5
Section 2.1. Representations and Warranties of SMMC...................................................... 5
Article III Conditions PRECEDENT................................................................................................... 9
Section 3.1. Conditions to Effectiveness............................................................................... 9
Section 3.2. Conditions Precedent to Payments................................................................... 9
Article IV Covenants....................................................................................................................... 9
Section 4.1. Affirmative Covenants of SMMC....................................................................... 9
Section 4.2. Negative Covenants of SMMC......................................................................... 12
Article V Termination Events........................................................................................................ 13
Section 5.1. Termination Events......................................................................................... 13
Section 5.2. Remedies......................................................................................................... 15
Article VI Indemnification............................................................................................................. 16
Section 6.1. Indemnities by SMMC..................................................................................... 16
Section 6.2. Other Costs and Expenses............................................................................... 18
Article VII Miscellaneous.............................................................................................................. 18
Section 7.1. Waivers and Amendments.............................................................................. 18
Section 7.2. Notices............................................................................................................. 18



Section 7.3. Protection of Ownership Interests of TPNA.................................................... 19
Section 7.4. Confidentiality................................................................................................. 20
Section 7.5. CHOICE OF LAW............................................................................................... 20
Section 7.6. CONSENT TO JURISDICTION............................................................................ 20
Section 7.7. WAIVER OF JURY TRIAL................................................................................... 21
Section 7.8. Integration; Binding Effect; Survival of Terms................................................ 21
Section 7.9. Counterparts; Severability; Section References.............................................. 22
Section 7.10. Bankruptcy Petition......................................................................................... 22
Section 7.11. Patriot Act........................................................................................................ 22
Exhibits
Exhibit I Definitions
Exhibit II SMMC’s Jurisdiction of Organization; Organizational Identification Number; Principal Place of Business; Chief Executive Office and Location(s) of Records; Federal Employer Identification Number; Legal, Other and Prior Names
Exhibit III SMMC’s Collection Accounts and Lock-Boxes
Exhibit IV SMMC’s Credit and Collection Policy





AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
THIS AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT, dated as of April 6, 2021 (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), is by and between Sealy Mattress Manufacturing Company, LLC, a Delaware limited liability company (“SMMC”), as the seller, and Tempur-Pedic North America, LLC, a Delaware limited liability company (“TPNA”), as the purchaser, and amends and restates in its entirety that certain Receivables Sale Agreement dated as of April 12, 2017, by and between SMMC and TPNA (the “Existing RSA”). Unless defined elsewhere herein, capitalized terms used in this Agreement shall have the meanings assigned to such terms in Exhibit I attached hereto (or, if not defined in Exhibit I attached hereto, the meanings assigned to such terms in Exhibit I to the CSA hereinafter described).
PRELIMINARY STATEMENTS
SMMC now owns, and from time to time hereafter will own, Receivables Assets. Upon the terms and conditions hereinafter set forth, SMMC wishes to sell and assign to TPNA, and TPNA wishes to purchase from SMMC, all of SMMC’s right, title and interest in and to the Receivables Assets existing as of the close of business on the Initial Cutoff Date and thereafter arising through and including the Termination Date.
SMMC and TPNA intend the transaction contemplated hereby to be a true sale of the Receivables Assets from SMMC to TPNA, providing TPNA with the full benefits of ownership of the Receivables Assets, and neither SMMC nor TPNA intends this transaction to be, or for any purpose to be characterized as, a loan from TPNA to SMMC secured by the Receivables Assets.
Immediately following its acquisition of the Receivables Assets from SMMC, TPNA will sell and/or contribute them to Tempur Sealy Receivables, LLC, a Delaware limited liability company (the “SPE”), pursuant to that certain Amended and Restated Receivables Sale and Contribution Agreement, dated as of April 6, 2021, by and between TPNA, as seller and contributor, and the SPE, as the buyer and contributee (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “RSCA”), and the SPE will pledge them to Wells Fargo Bank, National Association, as administrative agent for the Lenders (together with its successors and assigns in such capacity, the “Administrative Agent”), pursuant to that certain Amended and Restated Credit and Security Agreement, dated as of April 6, 2021, by and among the SPE, as borrower, Tempur Sealy International, Inc., a Delaware corporation, as initial master servicer (the “Master Servicer”), the lenders from time to time party thereto (the “Lenders”) and the Administrative Agent (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “CSA”), in exchange for certain loans.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



Article I
Amounts and Terms
Section 1.1. Purchase of Receivables Assets.
a.Effective as of April 12, 2017 (the “Closing Date”), in consideration for the Purchase Price and upon the terms and subject to the conditions set forth herein, SMMC hereby sells, assigns, transfers and otherwise conveys to TPNA, without recourse (except to the extent expressly provided herein), and TPNA hereby purchases from SMMC, all of SMMCs’ right, title and interest in and to (i) all Receivables existing as of the close of business on the Initial Cutoff Date and all Receivables thereafter arising through and including the Termination Date, together, in each case, with (ii) all Related Security relating thereto and (iii) all Collections of the foregoing (all of the foregoing in clauses (i), (ii) and (iii), collectively, the “Initial Receivables Assets”). On each Business Day after the Closing Date through and including the Termination Date (each such Business Day, together with the Closing Date, a “Purchase Date”), in consideration for the Purchase Price and upon the terms and subject to the conditions set forth herein, SMMC shall sell, assign, transfer and otherwise convey to TPNA, without recourse (except to the extent expressly provided herein), and TPNA shall hereby purchase from SMMC, all of SMMCs’ right, title and interest in and to (i) all Receivables arising on such date, together, in each case, with (ii) all Related Security relating thereto and (iii) all Collections of the foregoing (all of the foregoing in clauses (i), (ii) and (iii), collectively, the “Subsequent Receivables Assets” and together with the Initial Receivables Assets, the “Receivables Assets”). TPNA shall be obligated to pay the Purchase Price for each Receivable in accordance with Section 1.2.
b.It is the intention of the parties hereto that the transfer of Receivables Assets hereunder shall constitute a true sale, which sale is absolute and irrevocable and provides TPNA with the full benefits of ownership of the Receivables Assets. Except for the Purchase Price Credits owed pursuant to Section 1.3, the transfer of Receivables Assets hereunder is made without recourse to SMMC for losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy, lack of creditworthiness or other financial or credit condition of the related Obligor resulting in the inability to pay of such Obligor; provided, however, that (i) SMMC shall be liable to TPNA for all representations, warranties, covenants and indemnities made by it pursuant to the terms of any of the Transaction Documents to which it is a party, and (ii) such transfer does not constitute and is not intended to result in an assumption by TPNA or any assignee thereof of any obligation of SMMC or any other Person arising in connection with the Receivables Assets or any other obligations of SMMC. In view of the intention of the parties hereto that the transaction evidenced by this Agreement shall constitute a true sale of the Receivables Assets, rather than a loan secured thereby, SMMC agrees that it will, on or prior to each Purchase Date, include a notation in its master data processing records relating to the Receivables sold on such Purchase Date to indicate that such Receivables have been sold to TPNA.
Section 1.2. Payment for the Purchase.
a.The Purchase Price for each Receivable shall become owing in full by TPNA to SMMC on the related Purchase Date and shall be paid on the next Monthly Payment Date in cash, it being understood and agreed that any such transfer of cash may be made by book entry rather than wire transfer of immediately available funds or automated clearing house (ACH) transfer.



b.To the extent that TPNA is entitled to any Purchase Price Credit pursuant to Section 1.3 and the amount of such Purchase Price Credit exceeds the Purchase Price that would have been owed by TPNA to SMMC under Section 1.2(a) above on the immediately succeeding Purchase Date without taking such Purchase Price Credit into account for purposes of the calculation of such price, the excess shall be payable by SMMC to TPNA in cash, it being understood and agreed that any such transfer of cash may be made by book entry rather than wire transfer of immediately available funds or automated clearing house (ACH) transfer.
c.Notwithstanding the foregoing, on any Business Day prior to a Settlement Date, with the consent of the Administrative Agent (as the ultimate assignee of TPNA), which consent shall not be unreasonably withheld or delayed, TPNA may provide written notice to SMMC excluding any Receivable from the Receivables being sold on such Settlement Date. Upon delivery of such notice to SMMC and receipt of the Administrative Agent’s consent, TPNA shall have no obligation to pay the Purchase Price for such Receivable, and such Purchase Price shall no longer be deemed owing hereunder.
Section 1.3. Purchase Price Credit Adjustments.
If on any day:
a.the Outstanding Balance of a Receivable originated by SMMC is:
i.reduced as a result of any defective or rejected or returned goods or services, any cash discount or any adjustment or otherwise by SMMC or any Affiliate thereof, or
ii.reduced or canceled as a result of a setoff in respect of any claim by any Person (whether such claim arises out of the same or a related transaction or an unrelated transaction), or
iii.reduced on account of the obligation of SMMC or any Affiliate thereof to pay the related Obligor any rebate or refund, or
iv.less than the amount included in the calculations in any Monthly Report, or
b.any of the representations and warranties set forth in Section 2.1(p) through and including Section 2.1(v) is not true when made or deemed made with respect to any Receivable,



then, in such event, TPNA shall be entitled to a credit (each, a “Purchase Price Credit”) against the Purchase Price otherwise payable hereunder equal to (A) in the case of clauses (a)(i)-(iv) above, the amount of such reduction or cancellation or the difference between the actual Outstanding Balance and the amount included in calculating the Net Pool Balance (as defined in the CSA), as applicable; and (B) in the case of clause (b) above, in the amount of the Purchase Price paid for such Receivable less Collections received by TPNA thereon. If, on any day prior to the Termination Date, the Purchase Price Credit due from SMMC exceeds the Purchase Price payable to SMMC on such day, the excess amount may be credited against the Purchase Price payable to SMMC on one or more subsequent Purchase Dates; provided, however, that (1) if any portion of a Purchase Price Credit remains unrealized on the Termination Date, it shall be payable by SMMC in cash on the Termination Date; (2) if any of the events described in clauses (a)(iv)-(iv) or (b) above occurs after the Termination Date, the resulting Purchase Price Credit shall be paid in cash on the date of occurrence; and (3) no Purchase Price Credit shall include any amount to the extent the same represents losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy, lack of creditworthiness or other financial or credit condition of the related Obligor resulting in the inability to pay in respect of an Obligor.
Section 1.4. Payments.
All amounts to be paid or deposited by TPNA hereunder shall be paid or deposited in cash in accordance with the terms hereof on the day when due. Any transfer of cash from one party to the other may be made by book entry on the next Monthly Payment Date in lieu of sending a wire transfer or automated clearing house (ACH) transfer of funds. In the event that any payment or deposit owed by any Person hereunder becomes due on a day that is not a Business Day, then such payment or deposit shall be made on the next succeeding Business Day. Any payment or deposit that is not made when due shall accrue interest at the Default Rate until paid in full. All interest shall be computed for actual days elapsed on the basis of a year consisting of 360 days.
Section 1.5. Transfer of Records.
In connection with any sale of Receivables hereunder, SMMC hereby sells, transfers, assigns and otherwise conveys to TPNA all of its right and title to and interest in the existing and future Records relating to the Receivables sold hereunder, without the need for any further documentation in connection with such sale. In connection with such transfer, SMMC hereby grants to each of TPNA, the SPE, the Administrative Agent and the Master Servicer an irrevocable, non-exclusive license to use, without royalty or payment of any kind, all software used by SMMC to account for the Receivables, to the extent necessary to administer the Receivables, whether such software is owned by SMMC or is owned by others and used by SMMC under license agreements with respect thereto; provided, however, that so long as the Records maintained in any software the license or sublicense of which hereunder would require the consent of the applicable licensor can be exported to Excel, such software (the “Excluded Software”) shall not be included in the license granted in this Section 1.5. The license granted hereby shall be irrevocable until the payment in full of the Aggregate Unpaids (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted), and shall automatically terminate on the date this Agreement terminates in accordance with its terms.



Section 1.6. Characterization.
If, notwithstanding the intention of the parties expressed in Section 1.1(b), the transfer by SMMC to TPNA of Receivables hereunder shall be characterized in any manner other than a true sale or such transfer for any reason shall be ineffective or unenforceable, then this Agreement shall be deemed to constitute a security agreement that creates or provides for a security interest to payment or performance of an obligation under the applicable UCC and other applicable law. For this purpose and without being in derogation of the parties’ intention that each transfer shall constitute a true sale and absolute assignment thereof, SMMC hereby grants to TPNA a security interest in all of SMMC’s right, title and interest in, to and under the Receivables Assets and all proceeds thereof, whether existing as of the close of business on the Initial Cutoff Date or thereafter arising through and including the Termination Date, to secure the prompt and complete payment of a loan deemed to have been made by TPNA to SMMC in an amount equal to the aggregate Purchase Price for the Receivables Assets, together with all other obligations of SMMC hereunder, which security interest, SMMC hereby represents and warrants, is valid, duly perfected and prior to all Liens. TPNA and its assigns shall have, in addition to the rights and remedies which they may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other applicable law, which rights and remedies shall be cumulative.
Article II
Representations and Warranties
Section 2.1. Representations and Warranties of SMMC.
SMMC hereby represents and warrants to TPNA on the Closing Date and on each date thereafter on which a Receivable of SMMC is sold hereunder prior to the Termination Date:
a.Organization; Power; Qualification. SMMC (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has all requisite power and authority, and the legal right, (i) to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged and (ii) execute, deliver and perform its obligations under the Transaction Documents to which it is a party, (c) is qualified to do business in, and is in good standing in, every jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, and (d) is in compliance with all Requirements of Law and its Contractual Obligations except, in each case (other than with respect to clause (a) or clause (b)(ii) above) to the extent that the failure to comply therewith could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
b.Authorization; Enforceability. SMMC has the right, power and authority and has taken all necessary limited liability company and other action to authorize the execution, delivery and performance of this Agreement and each of the other Transaction Documents to which it is a party in accordance with their respective terms, the sales of Receivables hereunder and the consummation of the transactions contemplated in this Agreement and the other Transaction Documents to which SMMC is a party. This Agreement and each of the other Transaction Documents to which SMMC is a party have been duly executed and delivered by the duly authorized officers of SMMC, and each such document constitutes a legal, valid and binding obligation of SMMC, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.



c.No Legal Bar. The execution, delivery and performance of this Agreement and the other Transaction Documents to which SMMC is a party, the sales of Receivables Assets hereunder and the use of the proceeds thereof (a) will not violate any Requirement of Law or any Contractual Obligation of SMMC and (b) will not result in, or require, the creation or imposition of any Lien on any of its properties or revenues pursuant to any Requirement of Law or any such Contractual Obligation (other than the Liens created by the Transaction Documents), except to the extent such violation or Lien, could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. The transactions evidenced by this Agreement, the RSCA and the Transaction Documents constitute a “Qualified Receivables Transaction” as defined in the Senior Bank Credit Agreement.
d.Litigation. There are no actions, suits, investigations, criminal prosecutions, civil investigative demands, imposition of criminal or civil fines or penalties, claims, disputes or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of SMMC, threatened against or affecting SMMC (i) that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) as of the Closing Date, that involve this Agreement.
e.No Default. SMMC is not in default under or with respect to any Contractual Obligation that would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Unmatured Termination Event or Termination Event has occurred and is continuing.
f.Ownership of Receivables Assets; Liens. Immediately prior to their sale hereunder, SMMC has good title to, or valid licenses of, all of the Receivables Assets, except where such failure to have good title or valid leasehold interests could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. None of the Receivables Assets is subject to any Lien other than Permitted Liens.
g.Taxes. SMMC has filed or caused to be filed all Federal, material state and other Tax returns that are required to be filed and has paid all Taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other Taxes imposed on it or any of its property by any Governmental Authority to the extent such Taxes have become due and payable (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of SMMC or the Performance Guarantor); no Tax Lien has been filed, and, to the knowledge of SMMC, no claim is being asserted, with respect to any such Tax that could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
h.Federal Regulations. No part of the proceeds of the sale of Receivables Assets hereunder will be used (a) for “buying” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U as now and from time to time hereafter in effect for any purpose that violates the provisions of the regulations of the Board or (b) for any purpose that violates the provisions of the regulations of the Board. No more than 25% of the assets of SMMC consist of “margin stock” as so defined.
i.Investment Company Act; Other Regulations. SMMC is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.



j.Accuracy of Information, etc. No statement or information, other than projections, pro forma financial statements, forward-looking statements, estimates with respect to future performance and information of a general economic or industry specific nature, contained in this Agreement, any other Transaction Document or any other document, certificate or statement furnished by or on behalf of SMMC to the Administrative Agent and the Lenders for use in connection with the transactions contemplated by this Agreement or the other Transaction Documents, contained as of the date such statement, information, document or certificate was so furnished, any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained herein or therein, taken as a whole, not misleading in light of the circumstances under which such statements were made (giving effect to all supplements thereto). The projections, pro forma financial information, forward-looking statements and estimates with respect to future performance contained in the materials referenced above are based upon good faith estimates and assumptions believed by management of SMMC or the Performance Guarantor to be reasonable at the time made, it being recognized by the Administrative Agent and the Lenders that such financial information as it relates to future events is not to be viewed as fact and that actual results during the period or periods covered by such financial information may differ from the projected results set forth therein by a material amount.
k.Solvency. On the Closing Date and on each date thereafter on which a Receivable of SMMC is transferred hereunder prior to the Termination Date, SMMC is Solvent.
l.OFAC; Anti-Money Laundering; Patriot Act. SMMC is in compliance, in all material respects, with the Patriot Act. SMMC or the Performance Guarantor has implemented and maintains in effect policies and procedures designed to ensure compliance by SMMC, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and SMMC, its Subsidiaries and their respective officers and employees and to the knowledge of the Performance Guarantor its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (i) SMMC nor any Subsidiary or to the knowledge of SMMC or such Subsidiary any of their respective directors, officers or employees, or (ii) to the knowledge of SMMC, any agent of SMMC or any Subsidiary that will act in any capacity in connection with or benefit from the receivables purchase facility established by the Transaction Documents, is a Sanctioned Person. No use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
m.Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, SMMC or any other Transaction Document (other than (i) as have already been obtained and are in full force and effect and (ii) filings to perfect security interests granted pursuant to the Transaction Documents).
n.Ownership of SMMC. SMMC is a Wholly-Owned Subsidiary of the Performance Guarantor.



o.Places of Business and Locations of Records. SMMC’s principal place of business, chief executive office and the other locations (if any) where its Records are located are at the addresses listed on Exhibit II or such other locations of which TPNA (and the Administrative Agent as its assignee) have been given prior notification in jurisdictions where all action required to maintain the perfection of TPNA’s and the Administrative Agent’s interests in the Receivables Assets has been taken and completed. SMMC’s Federal Employer Identification Number and Organizational Identification Number are correctly set forth on Exhibit II. SMMC is organized solely under the laws of the jurisdiction listed in Exhibit II.
p.Names. Except as stated on Exhibit II and the name in which it has executed this Agreement, in the five (5) years prior to the Closing Date, SMMC has not used any legal names, trade names or assumed names.
q.Collections. All of SMMC’s Lock-Boxes and Collection Accounts into which Collections are paid are listed on Exhibit III to this Agreement. SMMC has directed the Obligors on its Receivables to make payments thereon to a Lock-Box or a Collection Account that is listed on to this Agreement. SMMC has not granted any Person (other than TPNA, the SPE, the Master Servicer and the Administrative Agent and its assigns) access to or control of any such Lock-Box or Collection Account, or the right to take dominion and control of any such Lock-Box or Collection Account at a future time or upon the occurrence of a future event. To the extent that funds other than Collections are deposited into any Collection Account or Lock-Box, SMMC or the Master Servicer can promptly trace and identify which funds constitute Collections.
r.Compliance with Credit and Collection Policy. SMMC has complied in all material respects with the Credit and Collection Policy with regard to each Receivable and the related Contract.
s.Good Title. Immediately prior to or contemporaneously with each sale hereunder, SMMC shall be the legal and beneficial owner of all of its then existing Receivables Assets with respect thereto, free and clear of any Lien except as created by the Transaction Documents and except for Permitted Liens.
t.Perfection. Assuming the filing of the financing statements approved by SMMC on the date hereof, this Agreement, together with such financing statements, is effective to create in favor of TPNA, a valid and perfected Security Interest in the Collateral, free and clear of any Lien except as created by the Transactions Documents and except for Permitted Liens.
u.Payments to SMMC. With respect to each Receivable sold hereunder, TPNA has given fair market value and reasonably equivalent value to SMMC in consideration therefor and such transfer was not made for or on account of an antecedent debt. No transfer by SMMC of any Receivable under this Agreement is or may be voidable under any section of the Federal Bankruptcy Code.



v.Enforceability of Contracts. Each Contract with respect to each Receivable is effective to create, and has created, a valid and binding obligation of the related Obligor to pay the Outstanding Balance of such Receivable created thereunder and any accrued interest thereon, enforceable against such Obligor in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
Article III
Conditions Precedent
Section 3.1. Conditions Precedent.
Effectiveness of this Agreement is subject to the conditions precedent set forth in Section 7 of Omnibus Amendment No. 2 to the Existing RSA and certain related documents, dated as of April 6, 2021.
Section 3.2. Conditions Precedent to Payments.
TPNA’s obligation to pay for any Receivable transferred hereunder after the Initial Cutoff Date shall be subject to the conditions precedent that: (a) the Facility Termination Date shall not have occurred under the CSA; and (b) on the date such Receivable is transferred hereunder, the following statements shall be true (and acceptance of the proceeds of any payment for such Receivable shall be deemed a representation and warranty by SMMC that such statements are then true):
i.the representations and warranties set forth in Article II are true and correct in all material respects on and as of the date such Receivable is transferred hereunder as though made on and as of such date (except to the extent such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date); and
ii.no Termination Event is continuing.
Notwithstanding the foregoing conditions precedent, upon payment of the Purchase Price for any Receivable (whether through book entry of a transfer of cash from TPNA to SMMC or by offset of Purchase Price Credits owed to TPNA), title to such Receivable and the other related Receivables Assets shall vest in TPNA, whether or not the conditions precedent to TPNA’s obligation to pay for such Receivable were in fact satisfied.
Article IV
Covenants
Section 4.1. Affirmative Covenants of SMMC.
Until the date on which this Agreement terminates in accordance with its terms, SMMC hereby covenants as set forth below:



a.Additional Information. SMMC will maintain proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities, and will furnish or cause to be furnished to TPNA (or its assigns) promptly, from time to time, such information, documents, records or reports relating to the Receivables Assets or the condition or operations, financial or otherwise, of SMMC as TPNA (or its assigns) may from time to time reasonably request in order to protect the interests of TPNA (and its assigns) under or as contemplated by this Agreement.
b.Notices. SMMC will furnish to TPNA (and its assigns) each of the following:
i.Copies of Notices under Control Agreements. Promptly upon its receipt from any Collection Bank under any Control Agreement to which SMMC is a party of (A) any notice of default or (B) any demand for reimbursement which is not covered by available funds in the applicable Collection Accounts, a copy of the same.
ii.Adoption of a New Credit and Collection Policy. In the event SMMC adopts a Credit and Collection Policy which could reasonably be expected to adversely impact the Receivables of SMMC in any material respect, at least ten (10) Business Days prior to the effectiveness of any such adoption, a copy of SMMC’s proposed new Credit and Collection Policy, together with a request for the Administrative Agent’s consent thereto (which consent will not be unreasonably withheld or delayed).
iii.Termination Events or Unmatured Termination Events. Promptly upon learning of the occurrence of any Termination Event or Unmatured Termination Event, a statement of a Responsible Officer describing the same and, if applicable, the steps being taken with respect thereto.
c.Maintenance of Existence. SMMC will (i)(A) preserve, renew and keep in full force and effect its organizational existence and good standing (except that SMMC may merge with an into TPNA), and (B) take all reasonable action to maintain all rights, privileges, franchises, licenses and permits necessary or desirable in the normal conduct of its business (except to the extent that failure to do so could not reasonably be expected to result in a Material Adverse Effect); and (ii) comply with all Requirements of Law (except to the extent that failure to comply therewith could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect).



d.Audits. SMMC will, from time to time during regular business hours (and without undue interference in SMMC’s business, taking into consideration seasonal accounting and reporting demands of SMMC) as requested by any Lender upon at least 30 calendar days’ advance notice, or, if an Amortization Event or Potential Amortization Event exists, upon at least five (5) Business Days’ advance notice, to SMMC and at the sole cost of SMMC, permit the Administrative Agent, or its agents or representatives, who may be accompanied by any of the Lenders (i) to examine and make copies of and abstracts from all Records in the possession or under the control of SMMC relating to the Receivables and the Related Security (including the related invoices but excluding, for all purposes of this clause (d), all other related Contracts unless there is a Dispute, in which case, upon request by any Lender, in addition to invoices, SMMC shall be required to provide the Administrative Agent with relevant excerpts and definitions from such other Contracts to assist the Administrative Agent and the Lenders in understanding the source of the Dispute), and (ii) to visit the offices and properties of such Loan Party for the purpose of examining such materials described in clause (i) above, and to discuss matters relating to SMMC’s financial condition or the Receivables and the Related Security or SMMC’s performance under any of the Transaction Documents and, in each case, with any of the officers or employees of SMMC having knowledge of such matters (each such examination, a “Review”); provided that, so long as no Facility Termination Event or Amortization Event has occurred and is continuing, (A) there shall be no more than one (1) such Review in any Fiscal Year, and (B) SMMC shall be responsible for the costs and expenses of only one (1) such Review.
e.Keeping and Marking of Records and Books.
i.SMMC will maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing Receivables in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all Receivables (including, without limitation, records adequate to permit the immediate identification of each new Receivable and all Collections of and adjustments to each existing Receivable). SMMC will give TPNA (or its assigns) notice of any material change in the administrative and operating procedures referred to in the previous sentence.
ii.SMMC will upon the reasonable request of TPNA (or its assigns) following the occurrence and during the continuance of a Termination Event hereunder: (1) mark each Contract with a legend describing the SPE’s ownership interest in the Receivables and further describing security interest in the Receivables of the Administrative Agent, and (2) deliver to the Administrative Agent all Contracts (including, without limitation, all multiple originals of any such Contract constituting an instrument, a document, a security or chattel paper) relating to the Receivables that are in SMMCs’ possession.
f.Compliance with Contracts and Credit and Collection Policy. SMMC will (i) timely and fully perform and comply in all material respects with all provisions, covenants and other promises required to be observed by it under the Contracts related to the Receivables, and (ii) not take any action inconsistent in any material respect with the Credit and Collection Policy in regard to any Receivable and the related Contract.



g.Separateness. SMMC acknowledges that each of the Administrative Agent and the Lenders is entering into the transactions contemplated by this Agreement, the RSCA and the CSA in reliance upon SMMC’s identity as a legal entity that is separate from the SPE. Therefore, from and after the date of execution and delivery of this Agreement, SMMC will not take any action inconsistent with the “separateness covenants” set forth in Section 5.1(f) of the CSA.
h.Collections. In the event any payments relating to Receivables Assets are remitted directly to SMMC, it will remit (or will cause all such payments to be remitted) directly to a Collection Bank and deposited into a Collection Account within two (2) Business Days following identification thereof and, at all times prior to such remittance, it will itself hold or, if applicable, will cause such payments to be held for the exclusive benefit of TPNA and its assigns. SMMC will transfer exclusive ownership, dominion and control of each Lock-Box and Collection Account to TPNA and shall not grant the right to take dominion and control of any Lock-Box or Collection Account at a future time or upon the occurrence of a future event to any Person, except to TPNA (or its assigns) as contemplated by this Agreement, the RSCA and the CSA.
i.Payment of Obligations. SMMC will pay and discharge, as the same shall become due and payable (beyond any period of grace or cure, if applicable), all its obligations and liabilities, including (a) material Tax liabilities before the same shall become delinquent or in default, except where (i) the validity or amount thereof is being contested in good faith by appropriate proceedings and (ii) SMMC has set aside on its books adequate reserves with respect thereto in accordance with GAAP, and (b) all lawful claims in excess of that, if unpaid, would by law become a Lien (other than a Permitted Lien) upon all or any material portion of the Receivables Assets.
Section 4.2. Negative Covenants of SMMC.
Until the date on which this Agreement terminates in accordance with its terms, SMMC hereby covenants that:
a.Change in Name, Jurisdiction of Incorporation, Offices and Records. It will not change (i) its name as it appears in the official public record in the jurisdiction of its incorporation (as contemplated by Section 9-503(a)(1) of the UCC), (ii) its status as a “registered organization” (within the meaning of Article 9 of any applicable enactment of the UCC), (iii) its organizational identification number, if any, issued by its jurisdiction of incorporation, or (iv) its jurisdiction of organization unless it shall have: (A) given the Administrative Agent at least ten (10) days’ prior written notice thereof; (B) at least three (3) Business Days prior to such change, delivered to the Administrative Agent all financing statements, instruments and other documents reasonably requested by the Administrative Agent in connection with such change or relocation and (C) solely if requested by the Administrative Agent, caused an opinion of counsel reasonably acceptable to the Administrative Agent to be delivered to the Administrative Agent to the effect that TPNA’s security interest is valid and perfected, such opinion to be in form and substance similar to the related opinion delivered on the Closing Date and otherwise reasonably acceptable to the Administrative Agent.



b.Change in Payment Instructions to Obligors. It will not add or terminate any bank as a Collection Bank, or make any change in the instructions to Obligors of Receivables regarding payments to be made to any Lock-Box or Collection Account, unless the Administrative Agent shall have received, (i) at least twenty (20) days before the proposed closing date therefor, written notice of such addition, termination or change, and (ii) with respect to the addition of a Collection Account, an executed Control Agreement with respect to the new Collection Account prior to depositing any Collections therein; provided, however, that it may make changes in instructions to Obligors regarding payments if such new instructions require such Obligor to make payments to another existing Lock-Box that clears through a Collection Account subject to a Control Agreement or to another existing Collection Account that is subject to a Control Agreement.
c.Modifications to Contracts. Except as otherwise permitted in its capacity as a sub-Servicer pursuant to the CSA, it will not extend, amend or otherwise modify the payment terms of any Receivable or any Contract related to such Receivable in any material respect other than in accordance with its Credit and Collection Policy.
d.Sales, Liens. Other than the ownership and security interests contemplated by the Transaction Documents, it will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, or create or suffer to exist any Lien upon (including, without limitation, the filing of any financing statement) or with respect to, any Receivables Asset, or upon or with respect to any Contract under which any Receivable arises, or any Lock-Box or Collection Account, or assign any right to receive income with respect thereto (other than, in each case, the creation of a security interest therein in favor of TPNA provided for herein), and it will defend the right, title and interest of TPNA in, to and under any of the foregoing property, against all claims of third parties claiming through or under it.
e.Accounting for Purchase. Except for tax and consolidated accounting purposes, it will not treat (the transactions contemplated hereby in any manner other than the sale and absolute assignment of the Receivables and the Related Security by it to TPNA (except to the extent that such transactions are not recognized on account of consolidated financial reporting in accordance with GAAP).
f.Use of Proceeds. SMMC will not use any proceeds of the sale of Receivables hereunder, either directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of “purchasing or carrying” any margin stock. No part of the proceeds of any sale of Receivables hereunder will be unlawfully used directly or indirectly to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Country, or in any other manner that will result in any violation by any Person (including the Administrative Agent and the Lenders) of any Anti-Terrorism Laws. SMMC will maintain in effect policies and procedures designed to ensure compliance by SMMC, its Subsidiaries and their respective directors, officers, employees and agents in all material respects with Anti-Corruption Laws and applicable Sanctions, and SMMC, its Subsidiaries and, to their knowledge, their respective directors, officers, employees and agents, will remain in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects.
g.Deposits to Lock-Boxes and Collection Accounts. Other than Incidental Deposits, SMMC will not knowingly deposit or otherwise credit to any Collection Account or Lock-Box any cash or cash proceeds other than Collections.



Article V
Termination Events
Section 5.1. Termination Events.
The occurrence of any one or more of the following events shall constitute a Termination Event:
a.SMMC or the Performance Guarantor shall fail to make any payment or deposit when required hereunder (taking into account any applicable period of grace) and such failure shall continue for five (5) Business Days.
b.Default in the performance, or breach, of any covenant or agreement on the part of SMMC contained in Section 4.1(b)(iii), Section 4.1(c)(i)(A) or Sections 4.2(a), (b), (d) - (g).
c.Default in the performance, or breach, of any covenant or agreement of SMMC or the Performance Guarantor in this Agreement or any other Transaction Document to which such Person is a party (excluding any covenant or agreement which is specifically addressed elsewhere in this Section 5.1), and the continuance of such default or breach for a period of thirty (30) days after the earlier to occur of (i) notice from TPNA or the Administrative Agent of such non-performance or non-observance, or (ii) the date on which a Responsible Officer of SMMC or the Performance Guarantor has knowledge of such non-performance or non-observance.
d.(i) Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of SMMC this Agreement, in any other Transaction Document to which SMMC is a party, or in any document delivered in connection herewith or therewith that is subject to materiality or Material Adverse Effect qualifications, shall be incorrect or misleading in any respect when made or deemed made, or (ii) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of SMMC in this Agreement, any other Transaction Document to which SMMC is a party, or in any document delivered in connection herewith or therewith that is not subject to materiality or Material Adverse Effect qualifications, shall be incorrect or misleading in any material respect when made or deemed made; provided that to the extent such false or misleading representation occurs under any of Section 2.1(q) through and including Section 2.1(v), no Termination Event shall occur under this Section 5.1(d) if a Purchase Price Credit is granted and realized upon or paid in cash as provided in Section 1.3.
e.Any Transaction Document to which SMMC or the Performance Guarantor is a party or any material provision thereof shall for any reason cease to be valid and binding on SMMC or the Performance Guarantor, as the case may be, or the Performance Guarantor shall assert that any Transaction Document is not enforceable in accordance with its terms.



f.SMMC or the Performance Guarantor shall (i) commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets; or (ii) there shall be commenced against SMMC or the Performance Guarantor any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed or undischarged for a period of 60 days; or (iii) there shall be commenced against SMMC or the Performance Guarantor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) SMMC or the Performance Guarantor shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) SMMC or the Performance Guarantor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or (vi) or SMMC or the Performance Guarantor shall make a general assignment for the benefit of its creditors.
g.A Change of Control shall occur with respect to SMMC or the Performance Guarantor.
h.The Performance Guarantor or SMMC shall (i) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the “Loans” under and as defined in the Senior Bank Credit Agreement) on the scheduled or original due date with respect thereto; or (ii) default in making any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; (iii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable; or (iv) there occurs under any Swap Agreement an Early Termination Date (as defined in such Swap Agreement) resulting from (A) any Event of Default (as so defined) under such Swap Agreement as to which the Performance Guarantor or any SMMC is the Defaulting Party (as defined in such Swap Agreement) or (B) any Termination Event (as so defined) under such Swap Agreement as to which the Performance Undertaking or any Restricted Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Performance Undertaking or SMMC as a result thereof is greater than $50,000,000; provided that a default, event or condition described in clause (i), (ii) or (iii) of this paragraph (h) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i), (ii) and (iii) of this paragraph (h) shall have occurred and be continuing with respect to Indebtedness the aggregate outstanding principal amount of which is $50,000,000 or more (all capitalized terms used in this paragraph (h) and not otherwise defined in this Agreement are used with the meanings ascribed thereto in the Senior Bank Credit Agreement).



i.One or more judgments or decrees shall be entered against SMMC or the Performance Guarantor involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has not disputed coverage) of $50,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 30 days from the entry thereof.
Section 5.2. Remedies.
Upon the occurrence and during the continuation of a Termination Event, TPNA (or the Administrative Agent, as its ultimate assignee) may take any of the following actions: declare the Termination Date to have occurred, whereupon the Termination Date shall forthwith occur, without demand, protest or further notice of any kind, all of which are hereby expressly waived by SMMC; provided, however, that upon the occurrence of a Termination Event described in Section 5.1(f) with respect to SMMC, the Termination Date shall automatically occur, without demand, protest or any notice of any kind, all of which are hereby expressly waived by SMMC, and to the fullest extent permitted by applicable Requirements of Law, interest at the Default Rate shall accrue with respect to any amounts then due and owing by SMMC to TPNA under this Agreement. The aforementioned rights and remedies shall be without limitation and shall be in addition to all other rights and remedies of TPNA and its assigns otherwise available under any other provision of this Agreement, by operation of law, at equity or otherwise, all of which are hereby expressly preserved, including, without limitation, all rights and remedies provided under the UCC, all of which rights shall be cumulative. For the avoidance of doubt, the occurrence of the Termination Date shall result in the termination of sales of the Receivables Assets under this Agreement but shall not accelerate or permit TPNA, the SPE or the Administrative Agent to accelerate, the due date for any amount payable under any Receivable.
Article VI
Indemnification
Section 6.1. Indemnities by SMMC.
Without limiting any other rights that TPNA (or the Administrative Agent, as its ultimate assignee) may have hereunder or under applicable law, SMMC hereby agrees to indemnify TPNA, the SPE, the Administrative Agent, each of the Lenders and each officer, director, manager, employee and agent of TPNA, the SPE, the Administrative Agent or any Lender (herein individually each called an “Indemnified Party” and collectively called the “Indemnified Parties”) from and against any and all losses, claims, damages, reasonable expenses (including, without limitation, reasonable attorneys’ fees and disbursements) and liabilities (all of the foregoing being herein called the “Indemnified Amounts”) incurred by an Indemnified Party relating to or resulting from:
i.any representation or warranty made by SMMC (or any officers of SMMC) under or in connection with this Agreement, any other Transaction Document to which SMMC is a party or any other information or report required to be delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
ii.the failure by SMMC to comply with any applicable Requirement of Law with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable Requirement of Law or any failure of SMMC to keep or perform any of its obligations, express or implied, with respect to any Contract;



iii.any failure of SMMC to perform its duties, covenants or other obligations in accordance with the provisions of any Transaction Document to which it is a party;
iv.any environmental liability, products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
v.any bona fide dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
vi.the commingling of Collections of Receivables by SMMC at any time with other funds;
vii.any failure of TPNA to acquire legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from SMMC, free and clear of any Lien (other than Permitted Liens) as a result of any action or inaction of SMMC;
viii.any failure to vest and maintain vested in TPNA a valid and perfected ownership interest or a first priority perfected Security Interest in the Receivables Assets, free and clear of any Lien (except Permitted Liens) as a result of any action or inaction of SMMC;
ix.[Reserved];
x.the failure of SMMC to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the transfer of the Receivables Assets to TPNA, whether on the date hereof or at any subsequent time, except to the extent such failure or delay is caused by TPNA (or the Administrative Agent, as its assignee);
xi.any action or omission by SMMC which reduces or impairs the rights of TPNA (or the Administrative Agent, as its ultimate assignee) with respect to the Receivables Assets or the value of the Receivables Assets (other than at the direction of TPNA or the Administrative Agent and except as contemplated by the Transaction Documents);
xii.the failure of any Receivable included as an Eligible Receivable on any Servicer Report to be an Eligible Receivable at the time so included; and
xiii.any attempt by any Person to void any sale hereunder or the Security Interest in the Receivables Assets granted hereunder, whether under statutory provision, common law or equitable action;
excluding, however, in each of the foregoing instances:
A.Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted solely from the gross negligence or willful misconduct on the part of the applicable Indemnified Party;



B.Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible solely on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
C.Excluded Taxes (as defined in the CSA);
provided, however, that nothing contained in this Section shall limit the liability of SMMC or limit the recourse of any Indemnified Party to SMMC for amounts otherwise specifically provided to be paid by SMMC under the terms of the Transaction Documents.
The provisions of this Section 6.1 shall survive termination of this Agreement, the RSCA and the CSA.
Section 6.2. Other Costs and Expenses.
SMMC shall pay (a) all reasonable out-of-pocket expenses incurred by the Administrative Agent (as TPNA’s ultimate assignee) (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the preparation, negotiation, execution, delivery and administration of this Agreement and the other Transaction Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and (b) all out‑of‑pocket expenses incurred by the Administrative Agent and the Lenders (including the fees, charges and disbursements of outside counsel to the Administrative Agent and the Lenders) in connection with the enforcement or protection of its rights against SMMC in connection with this Agreement and the other Transaction Documents to which SMMC is a party, including its rights under this Section.
Article VII
Miscellaneous
Section 7.1. Waivers and Amendments.
A.No failure or delay on the part of TPNA (or its assigns) in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other further exercise thereof or the exercise of any other power, right or remedy. The rights and remedies herein provided shall be cumulative and nonexclusive of any rights or remedies provided by applicable Requirement of Law. Any waiver of this Agreement shall be effective only in the specific instance and for the specific purpose for which given.
i.No provision of this Agreement may be amended, supplemented, modified or waived except in writing signed by SMMC and the Administrative Agent (as TPNA’s ultimate assignee).



Section 7.2. Notices.
The provisions of Section 12.2 of the CSA shall apply to all notices to be given under this Agreement. All communications and notices provided for hereunder shall be given to the parties hereto at the following addresses or facsimile numbers:
If to SMMC:    1000 Tempur Way
Lexington, KY 40511
Attention: Santiago X. Bravo
Phone: (859) 455-2748
Fax: n/a
Email: Santiago.bravo@tempursealy.com
If to TPNA:    1000 Tempur Way
Lexington, KY 40511
Attention: Santiago X. Bravo
Phone: (859) 455-2748
Fax: n/a
Email: Santiago.bravo@tempursealy.com
With a copy to:
Wells Fargo Bank, National Association
1100 Abernathy Rd., NE
16th Floor, Suite 1600
Atlanta, GA 30328-5657
Attention: Jonathan Davis
Email: WFCFReceivablesSecuritizationAtlanta@wellsfargo.com; jonathan.davis@wellsfargo.com
Phone: (770) 508-2162; cell: (404) 430-3777
Fax: (855) 818-1932
Section 7.3. Protection of Ownership Interests of TPNA.
a.From time to time, at its expense, SMMC will take all necessary action to establish and maintain, irrevocably in TPNA: (i) legal and equitable title to the Receivables and (ii) all of SMMC’s right, title and interest in the Related Security associated with the Receivables, in each case, free and clear of any Liens other than Permitted Liens.
b.At any time following the occurrence and during the continuance of a Termination Event hereunder, TPNA (or its assigns) may, at SMMC’s sole cost and expense, direct SMMC to notify the Obligors of Receivables of the ownership interest of TPNA (or its assigns) under this Agreement.



c.If, following the occurrence and during the continuance of a Termination Event hereunder, SMMC fails to perform any of its obligations hereunder, TPNA (or its assigns) may (but shall not be required to) perform, or cause performance of, such obligations, and TPNA’s (or such assigns’) costs and expenses incurred in connection therewith shall be payable by SMMC as provided in Section 6.2. SMMC irrevocably authorizes TPNA (and its assigns) at any time and from time to time in the sole discretion of TPNA (or its assigns), and appoints TPNA (and its assigns) as its attorney(ies)-in-fact, to act on behalf of SMMC to file on behalf of SMMC, as debtor, all financing statements, continuation statements and amendments thereto or assignments thereof, and execute such other instruments or notices, as may be reasonably necessary or desirable in TPNA’s (or its assigns’) sole discretion to perfect and to maintain the perfection and priority of the interest of TPNA in SMMC Collateral. This appointment is coupled with an interest and is irrevocable.
d.(i) SMMC acknowledges and agrees that it is not authorized to, and will not, file financing statements or other filing or recording documents with respect to the Receivables Assets (including any amendments thereto, or continuation or termination statements thereof), without the express prior written approval by the Administrative Agent (as TPNA’s assignee), consenting to the form and substance of such filing or recording document, and (ii) SMMC hereby approves, authorizes and ratifies any filings or recordings made by or on behalf of the Administrative Agent (as TPNA’s assign) in connection with the perfection of the Security Interests in favor of TPNA or the Administrative Agent (as TPNA’s ultimate assignee).
Section 7.4. Termination. TPNA may, at any time with five (5) Business Days’ written notice to SMMC, terminate this transaction. Any Receivables originated before the date of such termination will be subject to purchase by TPNA at the Purchase Price thereof on the date of such termination.
Section 7.5. Confidentiality.
The parties agree to be bound by the provisions of Section 12.5 of the CSA with the same force and effect as if fully set forth herein.
Section 7.6. CHOICE OF LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH SHALL APPLY HERETO) EXCEPT TO THE EXTENT THAT THE PERFECTION OF TPNA’S SECURITY INTEREST IN THE RECEIVABLES ASSETS OR REMEDIES HEREUNDER IN RESPECT THEREOF ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.



Section 7.7. CONSENT TO JURISDICTION.
EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO THIS AGREEMENT, AND EACH OF THE PARTIES HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST SMMC IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY SMMC AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY AFFILIATE THEREOF INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH SELLER PARTY PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN THE BOROUGH OF MANHATTAN, NEW YORK.
Section 7.8. WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY SMMC PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Section 7.9. Integration; Binding Effect; Survival of Terms.
a.This Agreement and each other Transaction Document contain the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof superseding all prior oral or written understandings.
b.This Agreement shall be binding upon and inure to the benefit of SMMC, TPNA and their respective successors and permitted assigns (including any trustee in bankruptcy). SMMC may not assign any of its rights and obligations hereunder or any interest herein without the prior written consent of the Administrative Agent (as TPNA’s ultimate assignee). TPNA may assign at any time its rights and obligations hereunder and interests herein to any other Person without the consent of SMMC. Without limiting the foregoing, SMMC acknowledges that TPNA, pursuant to RSCA, may assign to the SPE, and pursuant to the CSA, the SPE may collaterally assign to the Administrative Agent, its rights, remedies, powers and privileges hereunder and that the Administrative Agent may further assign such rights, remedies, powers and privileges to the extent permitted in the CSA. SMMC agrees that the Administrative Agent (as the ultimate assignee of TPNA), shall, subject to the terms of the CSA, have the right to enforce this Agreement and to exercise directly all of TPNA’s rights and remedies under this Agreement (including, without limitation, the right to give or withhold any consents or approvals of TPNA to be given or withheld hereunder), and SMMC agrees to cooperate fully with the Administrative Agent in the exercise of such rights and remedies.



c.This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms and shall remain in full force and effect until terminated in accordance with its terms; provided, however, that the rights and remedies with respect to (i) any breach of any representation and warranty made by SMMC pursuant to Article II, (ii) the indemnification and payment provisions of Article VI, and Sections 7.4 through and including 7.10 shall be continuing and shall survive any termination of this Agreement.
d.Notwithstanding anything herein to the contrary, any Person into which SMMC or TPNA may be merged or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which SMMC or TPNA shall be a party, or any Persons succeeding to the business of SMMC or TPNA (so long as such person is an Affiliate of SMMC or TPNA, as applicable), shall be the successor to SMMC or TPNA hereunder, respectively, without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided, however that such successor shall be an Affiliate of the Master Servicer.
Section 7.10. Counterparts; Severability; Section References.
This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. To the fullest extent permitted by applicable law, delivery of an executed counterpart of a signature page of this Agreement by telefacsimile or electronic image scan transmission (such as a “pdf” file) will be effective to the same extent as delivery of a manually executed original counterpart of this Agreement. Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Unless otherwise expressly indicated, all references herein to “Article,” “Section,” “Schedule” or “Exhibit” shall mean articles and sections of, and schedules and exhibits to, this Agreement.
Section 7.11. Bankruptcy Petition.
SMMC covenants and agrees that, prior to the date that is two years and one day after the payment in full of all outstanding obligations of the SPE under the CSA, it will not institute against, or join any other Person in instituting against, the SPE, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States.
Section 7.12. Patriot Act.
The Administrative Agent (as TPNA’s ultimate assignee) hereby notifies SMMC that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Performance Guarantor and its Subsidiaries, which information may include the name and address of SMMC and its Subsidiaries and other information that will allow the Administrative Agent to identify such parties in accordance with the Patriot Act.
<Signature pages follow>




IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized officers as of the date hereof.

Sealy Mattress Manufacturing Company, LLC

By: _____________________
Name: Bhaskar Rao
Title: Executive Vice President and Chief Financial Officer





Tempur-Pedic North America, LLC

By: ____________________
Name: Bhaskar Rao
Title: Executive Vice President and Chief Financial Officer




Exhibit I
Definitions
This is Exhibit I to the Agreement (as hereinafter defined). As used in the Agreement and the Exhibits and Schedules thereto, capitalized terms have the meanings set forth in this Exhibit I (such meanings to be equally applicable to the singular and plural forms thereof). If a capitalized term is used in the Agreement, or any Exhibit or Schedule thereto, and is not otherwise defined therein or in this Exhibit I, such term shall have the meaning assigned thereto in the CSA.
“Administrative Agent” has the meaning specified in the Preliminary Statements.
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
Agreement” has the meaning specified in the preamble.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Performance Guarantor, SMMC, TPNA or the SPE from time to time concerning or relating to bribery or corruption.
“Board” means the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close, provided, that (i) with respect to notices and determinations in connection with, and such day is also a day for trading by and between banks in Dollar deposits in the London interbank eurodollar market.
“Calculation Period” means each calendar month, or portion thereof, from and after the Closing Date.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing, but excluding any debt securities convertible into any of the foregoing.
“Change of Control” means any of the following
(a) the occurrence of a “Change of Control” (as defined in the Senior Credit Agreement);
(b) SMMC or TPNA shall cease to be a direct or indirect Wholly Owned Subsidiary of the Performance Guarantor; or
(c) the SPE shall cease to be a direct Wholly Owned Subsidiary of TPNA.



“Closing Date” has the meaning specified in Section 1.1.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collection Account” means each concentration account, depositary account, lock-box clearing account or similar account in which any Collections are collected or deposited and which is listed on Exhibit III hereto (as such exhibit may be modified from time to time in connection with the closing or opening of any Collection Account in accordance with the terms of the CSA).
“Collection Bank” means, at any time, any bank at which a Collection Account or Lock-Box is maintained.
“Collections” means, with respect to any Receivable, all cash collections and other cash proceeds in respect of such Receivable, including, without limitation, all Interest, Finance Charges or other related amounts accruing in respect thereof and all cash proceeds of Related Security with respect to such Receivable.
“Contract” means, with respect to any Receivable, any and all instruments, agreements, invoices or other writings (including an agreement evidenced by a purchase order or similar document) pursuant to which such Receivable arises or which evidences such Receivable.
“Contractual Obligation” means as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control Agreement” has the meaning specified in the CSA.
“CSA” has the meaning specified in the Preliminary Statements.
Default Rate” means a per annum rate of interest equal to the Discount Rate computed with the Applicable Margin that applies from and after the occurrence and during the continuance of an Amortization Event (under and as defined in the CSA).
“Dollars” and “$” means dollars in lawful currency of the United States.
Discount Factor” means a percentage calculated to provide TPNA with a reasonable return on its investment in the Receivables after taking account of (i) the time value of money based upon the anticipated dates of collection of the Receivables and the cost to TPNA of financing its investment in the Receivables during such period, and (ii) the risk of nonpayment by the Obligors. SMMC and TPNA may agree from time to time and at any time to change the Discount Factor based on changes in one or more of the items affecting the calculation thereof, provided that any change to the Discount Factor shall take effect as of the commencement of a Calculation Period, shall apply only prospectively and shall not affect the Purchase Price payment made prior to the Calculation Period during which SMMC and TPNA agree to make such change. As of the date of this Agreement, the Discount Factor for SMMC is 1.5%.
“Excluded Receivable” means any right to payment for goods sold or services rendered by SMMC which is sold, pledged or otherwise transferred to Wells Fargo Commercial Distribution Finance, LLC (“WFCDF”) under that certain Vendor Agreement dated as of January 15, 20114, by and among WFCDF, Sealy Mattress Company and SMMC, as amended from time to time in accordance with the terms thereof.



“Finance Charges” means, with respect to a Contract, any finance, interest, late payment charges or similar charges owing by an Obligor pursuant to such Contract.
“GAAP” means generally accepted accounting principles in the United States as in effect from time to time.
“Governmental Authority” means any nation or government (including any supra-national bodies such as the European Union or the European Central Bank), any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).
Incidental Deposits” means amounts arising in ordinary course of business or distinct circumstances that are deposited in the Collection Account, with the aggregate total of such amounts in any Calculation Period not to exceed $200,000.
Initial Cutoff Date” means February 28, 2017.
Initial Receivables Assets” has the meaning specified in Section 1.1(a).
“Lien” means any mortgage, pledge, hypothecation, cash collateral or other similar deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or other security agreement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).
“Lenders” has the meaning specified in the Preliminary Statements.
“Lock-Box” means each locked postal box associated with a Collection Account for the purpose of retrieving and processing payments made on the Receivables and which is listed on Exhibit III (as such exhibit may be modified from time to time in connection with the addition or removal of any Lock-Box in accordance with the terms of the CSA).
“Material Adverse Effect” means any event which has a material adverse effect on (a) the assets, financial condition or operations of the Performance Guarantor, SMMC, TPNA or the SPE, (b) the ability of the Performance Guarantor, SMMC, TPNA or the SPE to perform its obligations under the Transaction Documents to which it is a party or by which it is bound, (c) the legality, validity, or enforceability of this Agreement, the RSCA, the CSA, the Performance Undertaking or any other Transaction Document to which the Performance Guarantor, SMMC, TPNA or the SPE is a party, (d) the status, existence, perfection or priority of the Administrative Agent’s Security Interest in the Receivables generally or any significant portion of the Receivables or the proceeds thereof, or (e) the validity, enforceability, value or collectability of the Receivables generally or of any material portion of the Receivables.
“Obligor” means a Person obligated to make payments pursuant to a Contract.
“Omnibus Amendment No. 2” has the meaning specified in the CSA.



“Organization Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and the operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Outstanding Balance” means, on any date of determination with respect to any Receivable, the outstanding principal balance thereof.
“Patriot Act” means the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
“Performance Guarantor” means Tempur Sealy International, Inc., a Delaware corporation, and its successors and assigns.
“Performance Undertaking” means the Performance Undertaking, dated as of March 31, 2017, by the Performance Guarantor in favor of TPNA and its assigns.
“Permitted Liens” means, in respect of the Receivables Assets: (a) Liens arising pursuant to any Transaction Document; (b) Liens for taxes not yet due or that are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP; and (c) Liens securing obligations under the Senior Bank Credit Agreement that are released prior to or substantially contemporaneously with their sale or contribution pursuant to the Transaction Documents.
“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
Purchase Date” has the meaning specified in Section 1.1(a).
Purchase Price” means, with respect to the Receivables Assets in existence on the Initial Cutoff Date and the Receivables Assets coming into existence on each day thereafter prior to the Termination Date, the aggregate price to be paid by TPNA to SMMC in accordance with Section 1.2 for such Receivables Assets, which price shall equal on any date (i) the product of (A) the Outstanding Balance of the Purchased Receivables on such date, multiplied by (B) one minus the Discount Factor in effect on such date, minus (ii) any Purchase Price Credits to be credited against the Purchase Price otherwise payable in accordance with Section 1.2.
Purchase Price Credit” has the meaning specified in Section 1.3.



“Receivable” means the indebtedness and other obligations owed (at the time it arises, and before giving effect to any transfer or conveyance contemplated under the Transaction Documents) to SMMC, whether constituting an account, chattel paper, an instrument, an intangible or a general intangible under the UCC, arising from the sale of goods or provision of services by SMMC including, without limitation, the obligation to pay any applicable Finance Charges with respect thereto. Indebtedness and other rights and obligations arising from any one transaction, including, without limitation, indebtedness and other rights and obligations represented by an individual invoice, shall constitute a Receivable separate from a Receivable consisting of the indebtedness and other rights and obligations arising from any other transaction; provided, however, that any indebtedness, rights or obligations referred to in the immediately preceding sentence shall be a Receivable regardless of whether the Obligor or SMMC treats such indebtedness, rights or obligations as a separate payment obligation.
Receivables Assets” has the meaning specified in Section 1.1(a).
“Records” means, with respect to any Receivable, all Contracts and other documents, books, records and other information (including, without limitation, computer programs, tapes, disks, punch cards, data processing software and related property and rights) relating to such Receivable, any Related Security therefor and the related Obligor.
“Regulation U” means Regulation U of the Board as in effect from time to time.
“Related Security” means, solely to the extent applicable to any Receivable:
(i) all of SMMC’s right, title and interest (if any) in the goods, the sale of which gave rise to such Receivable,
(ii) all other Security Interests or Liens and property subject thereto from time to time, if any, purporting to secure payment of such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, together with all financing statements and security agreements describing any collateral securing such Receivable; provided that, prior to the Amortization Date, it is understood and agreed that notwithstanding anything herein or in any Transaction Document to the contrary, SMMC shall not be required to take any action to cause any such guarantee, letter of credit, insurance or other supporting obligation to be transferred to or for the benefit of, or otherwise assigned to, the Administrative Agent to the extent any such transfer or assignment requires the consent of any Person or is prohibited by applicable law,
(iii) all guaranties, letters of credit, insurance and other supporting obligations, agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise,
(iv) all service contracts and other contracts and agreements associated with such Receivable,
(v) all Records related to such Receivable,
(vi) all of SMMC’s right, title and interest in each Lock-Box and each Collection Account, and
(vii) all proceeds of any of the foregoing.



“Requirement of Law” means, as to any Person, the Organization Documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer” of any Person, means the chief executive officer, president, chief financial officer or treasurer of such Person, but in any event, with respect to financial matters, the chief financial officer of such Person.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, Canada or Her Majesty’s Treasury of the United Kingdom.
“Sanctioned Country” means at any time, a country or territory which is itself the subject or target of any comprehensive Sanctions (as of the Closing Date, Cuba, Iran, North Korea, Sudan, the Crimea region of Ukraine and Syria).
“Sanctioned Person” means at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union, Canada or any EU member state, (b) any Person located, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons.
“Security Interest” has the meaning ascribed thereto in Article 9 of the UCC.
“Senior Bank Credit Agreement” means that certain Amended and Restated Credit Agreement dated as of October 16, 2019, among the Performance Guarantor, as Parent Borrower, certain of its Subsidiaries as Additional Borrowers (as defined below) from time to time parties thereto, the lenders from time to time parties thereto, and JPMorgan Chase Bank, N.A., as administrative agent, as in effect on April 6, 2021, and as thereafter amended, restated or otherwise modified from time to time pursuant to an instrument or other document to which the Required Lenders give their prior written consent to the extent any such amendment, restatement or other modification impacts any provisions of or definition used in the Transaction Documents.
“SMMC” has the meaning specified in the preamble.



“Solvent” means when used with respect to any Person, means that, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the fair value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured; provided that the amount of any contingent or disputed liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability at such time.
Subsequent Receivables Assets” has the meaning specified in Section 1.1(a).
“Subsidiary” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Performance Guarantor. Notwithstanding any provision herein to the contrary, Comfort Revolution LLC shall not be considered a Subsidiary of the Performance Guarantor for purposes of this Agreement or the other Transaction Documents prior to the date on which the Performance Guarantor or one or more of its Subsidiaries notifies the Administrative Agent (as TPNA’s ultimate assignee) that Comfort Revolution has become a Subsidiary Guarantor under and as defined in the Senior Credit Agreement.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges in the nature of taxes imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Termination Date” means the earliest to occur of (i) the Facility Termination Date (as defined in the CSA), (ii) the Business Day immediately prior to the occurrence of a Termination Date under Section 5.1(f) hereof, (iii) the Business Day specified in a written notice to SMMC from the Administrative Agent (as TPNA’s ultimate assignee) following the occurrence of any other Termination Event, and (iv) the date which is 10 Business Days after TPNA’s and the Administrative Agent’s receipt of written notice from SMMC that SMMC wishes to terminate the facility evidenced by this Agreement.
Termination Event” has the meaning specified in Section 5.1.
“TPNA” has the meaning specified in the preamble.



“Transaction Documents” means, collectively, this Agreement, the RSCA, the CSA, the Performance Undertaking, Omnibus Amendment No. 2, the Control Agreements, and all other instruments, documents, certificates, reports and agreements required to be executed and delivered pursuant to any of the foregoing, as each of the foregoing may be amended, restated or otherwise modified from time to time.
“UCC” means the Uniform Commercial Code as in effect in the State of New York or, as the context may require, any other applicable jurisdiction.
Unmatured Termination Event” means an event which, with the passage of time or the giving of notice, or both, could constitute a Termination Event.
“Wholly Owned Subsidiary” means, as to any Person, any other Person all of the Capital Stock of which (other than directors’ qualifying shares required by law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries.
All accounting terms not specifically defined herein shall be construed in accordance with GAAP. All terms used in Article 9 of the UCC in the State of New York, and not specifically defined herein, are used herein as defined in such Article 9.

Document



ANNEX B TO OMNIBUS AMENDMENT NO. 2

AMENDED AND RESTATED RECEIVABLES SALE AND CONTRIBUTION AGREEMENT


DATED AS OF APRIL 6, 2021


by and between

TEMPUR-PEDIC NORTH AMERICA, LLC,
as the seller and contributor,

and

TEMPUR SEALY RECEIVABLES, LLC,
as the purchaser and contributee





TABLE OF CONTENTS
PAGE
ARTICLE I AMOUNTS AND TERMS 2
Section 1.1.    Purchase and Contribution of Receivables Assets...................................................2
Section 1.2.    Payment for the Purchases; Capital Account Adjustments for Contributed Receivables...3
Section 1.3.    Purchase Price Credit Adjustments..........................................................................4
Section 1.4.    Payments..................................................................................................................4
Section 1.5.    Transfer of Records..................................................................................................5
Section 1.6.    Characterization.......................................................................................................5
ARTICLE II REPRESENTATIONS AND WARRANTIES 6
Section 2.1.    Representations and Warranties of TPNA................................................................6
ARTICLE III CONDITIONS PRECEDENT 9
Section 3.1.    Conditions to Effectiveness......................................................................................9
Section 3.2.    Conditions Precedent to Payments..........................................................................9
ARTICLE IV COVENANTS 10
Section 4.1.    Affirmative Covenants of TPNA................................................................................10
Section 4.2.    Negative Covenants of TPNA....................................................................................12
ARTICLE V TERMINATION EVENTS 13
Section 5.1.    Termination Events...................................................................................................13
Section 5.2.    Remedies..................................................................................................................15
ARTICLE VI INDEMNIFICATION 16
Section 6.1.    Indemnities by TPNA................................................................................................16
Section 6.2.    Other Costs and Expenses........................................................................................18
ARTICLE VII MISCELLANEOUS 18
Section 7.1.    Waivers and Amendments.......................................................................................18
Section 7.2.    Notices......................................................................................................................18
Section 7.3.    Protection of Ownership Interests of the SPE..........................................................19
Section 7.4.    Confidentiality..........................................................................................................20
Section 7.5.    CHOICE OF LAW........................................................................................................20
Section 7.6.    CONSENT TO JURISDICTION......................................................................................20
Section 7.7.    WAIVER OF JURY TRIAL.............................................................................................21
Section 7.8.    Integration; Binding Effect; Survival of Terms..........................................................21
Section 7.9.    Counterparts; Severability; Section References.......................................................22
Section 7.10.    Bankruptcy Petition..................................................................................................22
Section 7.11.    Patriot Act.................................................................................................................22




EXHIBITS
Exhibit I Definitions
Exhibit II TPNA’s Jurisdiction of Organization; Organizational Identification Number; Principal Place of Business; Chief Executive Office and Location(s) of Records; Federal Employer Identification Number; Legal, Other and Prior Names
Exhibit III TPNA’s Collection Accounts and Lock-Boxes
Exhibit IV TPNA’s Credit and Collection Policy



AMENDED AND RESTATED RECEIVABLES SALE AND CONTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED RECEIVABLES SALE AND CONTRIBUTION AGREEMENT, dated as of April 6, 2021 (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), is by and between TEMPUR-PEDIC NORTH AMERICA, LLC, a Delaware limited liability company (“TPNA”), as the seller and contributor, and TEMPUR SEALY RECEIVABLES, LLC, a Delaware limited liability company (the “SPE”), and amends and restates in its entirety that certain Receivables Sale and Contribution Agreement dated as of April 12, 2017 by and between TPNA and the SPE the “Existing RSCA”). Unless defined elsewhere herein, capitalized terms used in this Agreement shall have the meanings assigned to such terms in Exhibit I attached hereto (or, if not defined in Exhibit I attached hereto, the meanings assigned to such terms in Exhibit I to the CSA hereinafter described).
PRELIMINARY STATEMENTS
TPNA is party to a Receivables Sale Agreement, dated as of April 12, 2017 (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “RSA”), pursuant to which TPNA is acquiring certain existing and future Receivables Assets from Sealy Mattress Manufacturing Company, LLC, a Delaware limited liability company (“SMMC”).
TPNA now owns, and from time to time hereafter will own, Receivables Assets including, without limitation, those acquired from SMMC pursuant to the RSA. Upon the terms and conditions hereinafter set forth, TPNA wishes to sell or contribute to the SPE, and the SPE wishes to purchase and accept from TPNA, all of TPNA’s right, title and interest in and to the Receivables Assets existing as of the close of business on the Initial Cutoff Date and thereafter arising through and including the Termination Date.
Substantially contemporaneously with its acquisition of the Receivables Assets pursuant to this Agreement, the SPE will pledge them to Wells Fargo Bank, National Association as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”), pursuant to that certain Amended and Restated Credit and Security Agreement, dated as of April 6, 2021, by and among the SPE, as borrower, Tempur Sealy International, Inc., a Delaware corporation, as initial master servicer (“Master Servicer”), the lenders from time to time party thereto (the “Lenders”) and the Administrative Agent (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “CSA”), in exchange for certain loans.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



Article I
Amounts and Terms
Section 1.1.    Purchase and Contribution of Receivables Assets.
(a)    Effective on and after April 12, 2017 (the “Closing Date”), TPNA hereby contributes, assigns, transfers and otherwise conveys to the SPE’s capital, without recourse to TPNA (except to the extent expressly provided herein), and the SPE hereby accepts (in each case, except to the extent described below), (i) all of TPNA’s right, title and interest in and to certain Receivables existing as of the close of business on the Initial Cutoff Date (collectively, the “Initial Receivables”), together with all Related Security and Collections associated therewith (collectively, the “Initial Receivables Assets”). On each Business Day after the Closing Date through and including the Termination Date (each such Business Day, together with the Closing Date, a “Transfer Date”), upon the terms and subject to the conditions set forth herein, TPNA shall sell or contribute, assign, transfer and otherwise convey to the SPE, without recourse (except to the extent expressly provided herein), and the SPE shall hereby accept or purchase from TPNA, all of TPNA’s right, title and interest in and to (i) all Receivables arising on such date, together, in each case, with (ii) all Related Security relating thereto and (iii) all Collections of the foregoing (collectively, the “Subsequent Receivables Assets”, together with the Initial Receivables Assets, the “Receivables Assets”). The Receivables and the related Receivables Assets sold by TPNA to the SPE pursuant to this Section 1.1(a) are referred to as “Purchased Receivables” and “Purchased Receivables Assets” and the Receivables and the related Receivables Assets contributed by TPNA to the SPE pursuant to this Section 1.1(a) are referred to as “Contributed Receivables” and “Contributed Receivables Assets”. In accordance with the preceding two sentences, on each Transfer Date, the SPE shall acquire all of TPNA’s right, title and interest in and to the related Receivables Assets. The SPE shall be obligated to pay the Purchase Price for each Purchased Receivable, and to increase the Capital Account for each Contributed Receivable, in accordance with Section 1.2.
(b)    It is the intention of the parties hereto that each transfer of Receivables hereunder shall constitute a true sale and/or contribution, which sale and/or contribution, as the case may be, is absolute and irrevocable and provides the SPE with the full benefits of ownership of the Receivables Assets. Except for the Purchase Price Credits owed pursuant to Section 1.3, each transfer of Receivables Assets hereunder is made without recourse to TPNA for losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy, lack of creditworthiness or other financial or credit condition of the related Obligor resulting in the inability to pay in respect of an Obligor; provided, however, that (i) TPNA shall be liable to the SPE for all representations, warranties, covenants and indemnities made by it pursuant to the terms of the Transaction Documents to which it is a party, and (ii) such transfer does not constitute and is not intended to result in an assumption by the SPE or any assignee thereof of any obligation of either Originator or any other Person arising in connection with the Receivables Assets or any other obligations of either Originator. In view of the intention of the parties hereto that each purchase and contribution shall constitute a true sale and/or true contribution of Receivables Assets, rather than a loan secured thereby, TPNA agrees that it will, on or prior to the Closing Date and each Transfer Date and in accordance with Section 4.1(e)(ii), include a notation in its master data processing records relating to the Receivables to indicate that the Purchased Receivables have been sold, and the Contributed Receivables have been contributed, to the SPE.



Section 1.2.    Payment for the Purchases; Capital Account Adjustments for Contributed Receivables.
(a)    On the Closing Date, (i) the SPE agrees to pay TPNA the Purchase Price for each Initial Receivable that is a Purchased Receivables, in cash, and (ii) the SPE agrees to credit the Capital Account with the Contributed Value of all Initial Receivables that are Contributed Receivables.
(b)    With respect to each Subsequent Receivable:
(i)    The Purchase Price for each such Purchased Receivable shall be owing in full by the SPE to TPNA or its designees on the Settlement Date after the related Transfer Date, and the Contributed Value of each such Contributed Receivable shall be credited to the Capital Account on the next Settlement Date after the related Transfer Date. TPNA shall provide SPE with a list of each Receivable originated. On each Settlement Date, TPNA shall determine the net increase or decrease in its Capital Account that occurred during the immediately preceding Calculation Period (or portion thereof) and shall account for such net increase or net reduction in its books and records. Although such reconciliation shall be effected on each Settlement Date, increases or decreases in the Capital Account shall be deemed to have occurred and shall be effective as of the related Transfer Date;
(ii)    The SPE agrees to pay the Purchase Price for each such Purchased Receivable on the Settlement Date following the Calculation Period in which the related Transfer Date occurs (A) to the extent of Available Cash on the date of payment, in cash, and (B) to the extent any portion of the Purchase Price remains unpaid, (x) to accept a contribution of Receivables Assets with a Contributed Value equal to such remaining unpaid portion of such Purchase Price, and (y) to the extent that the SPE is entitled to any Purchase Price Credit pursuant to Section 1.3 in respect of Purchased Receivables and the amount of such Purchase Price Credit exceeds the Purchase Price that would have been owed by the SPE to TPNA under this clause (b)(ii) without taking such Purchase Price Credit into account for purposes of the calculation of such price, TPNA shall pay the excess in cash or the balance in the Capital Account shall be automatically decreased (to a balance not less than zero); and
(iii)    To the extent any portion of the Purchase Price of a Purchased Receivable owing to TPNA is not paid in full in cash on the Settlement Date after the Calculation Period during which the related Transfer Date occurs, if elected by TPNA in its sole discretion, TPNA may designate such Receivable as a Contributed Receivable and contribute it and the associated Contributed Receivable Assets to the SPE in exchange for an increase in its Capital Account in an amount equal to the Contributed Value of such Contributed Receivable.
(c)    Notwithstanding the foregoing, on any Business Day prior to a Settlement Date, with the consent of the Administrative Agent (as the SPE’s assignee), which consent shall not be unreasonably withheld or delayed, the SPE may provide written notice to TPNA excluding any Receivable from the Receivables being sold and/or contributed on such Settlement Date. Upon delivery of such notice to TPNA and receipt of the Administrative Agent’s consent, the SPE shall have no obligation to pay the Purchase Price for such Receivable and such Purchase Price shall no longer be deemed owing hereunder.



Section 1.3.    Purchase Price Credit Adjustments.
If on any day:
(a)    the Outstanding Balance of a Receivable sold or contributed by TPNA hereunder is:
(i)    reduced as a result of any defective or rejected or returned goods or services, any cash discount or any adjustment or otherwise by TPNA or any Affiliate thereof, or
(ii)    reduced or canceled as a result of a setoff in respect of any claim by any Person (whether such claim arises out of the same or a related transaction or an unrelated transaction), or
(iii)    reduced on account of the obligation of TPNA or any Affiliate thereof to pay the related Obligor any rebate or refund, or
(iv)    less than the amount included in the calculations in any Monthly Report, or
(b)    any of the representations and warranties set forth in Section 2.1(p) through and including Section 2.1(v) is not true when made or deemed made with respect to any Receivable,
then, in such event, the SPE shall be entitled to a credit (each, a “Purchase Price Credit”) against the Purchase Price otherwise payable for such Purchased Receivable (or the Contribution Value of such Contributed Receivable otherwise to be credited to the Capital Account on such day) equal to (A) in the case of clauses (a)(i)-(iv) above, the amount of such reduction or cancellation or the difference between the actual Outstanding Balance and the amount included in calculating the Net Pool Balance, as applicable; and (B) in the case of clause (b) above, in the amount of the Purchase Price paid or Contribution Value credited to the Capital Account for such Receivable less Collections received by the Buyer thereon; provided, however, that if the SPE thereafter receives payment on account of the Outstanding Balance of such Receivable, the SPE shall promptly deliver such funds to TPNA. If, on any Transfer Date, the Purchase Price Credit due from TPNA exceeds the Purchase Price payable to TPNA on such day, solely in the case of Purchase Price Credits arising from Purchased Receivables, the excess amount of such Purchase Price Credit shall be credited against the Purchase Price payable to TPNA on one or more subsequent Transfer Dates; provided, however, that (1) if any portion of a Purchase Price Credit remains unrealized on the Termination Date, it shall be payable by TPNA in cash on the Termination Date; (2) if any of the events described in clauses (a)(i)-(iv) or (b) above occurs after the Termination Date, the resulting Purchase Price Credit shall be paid in cash on the date of occurrence; (3) no Purchase Price Credit shall be due for any amount to the extent the same represents losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy, lack of creditworthiness or other financial or credit condition of the related Obligor resulting in the inability to pay in respect of an Obligor; and (4) Purchase Price Credits owing from TPNA relating to Contributed Receivables shall be reflected solely as reductions of the balance in the Capital Account.



Section 1.4.    Payments.
All amounts to be paid or deposited by the SPE hereunder shall be paid or deposited in accordance with the terms hereof on the day when due in immediately available funds to an account of Master Servicer, for the account of TPNA, designated from time to time by Master Servicer or as otherwise directed by Master Servicer. Master Servicer shall pay funds so received to TPNA, in cash or by way of credit to the appropriate intercompany account on the next Settlement Date. In the event that any payment owed by any Person hereunder becomes due on a day that is not a Business Day, then such payment shall be made on the next succeeding Business Day. If any Person fails to pay any amount hereunder when due, such Person agrees to pay, on demand, interest accrued at the Default Rate in respect thereof until paid in full; provided, however, that the Default Rate shall not at any time exceed the maximum rate permitted by applicable law. All computations of interest payable hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first but excluding the last day) elapsed.
Section 1.5.    Transfer of Records.
In connection with any sale or contribution of Receivables hereunder, TPNA hereby contributes, sells, transfers, assigns and otherwise conveys to the SPE, all of TPNA’s right and title to and interest in the Records relating to the Receivables sold or contributed hereunder, but solely to the extent related to the such Receivables, without the need for any further documentation in connection with such sale or contribution. In connection with such transfer, TPNA hereby grants to each of the SPE, the Administrative Agent and Master Servicer an irrevocable, non-exclusive license to use, without royalty or payment of any kind, all software used by TPNA to account for the Receivables, to the extent necessary to administer the Receivables, whether such software is owned by TPNA or is owned by others and used by TPNA under license agreements with respect thereto; provided, however, that so long as the Records maintained in any software the license or sublicense of which hereunder would require the consent of the applicable licensor can be exported to Excel, such software shall not be included in the license granted in this Section 1.5. The license granted hereby shall be irrevocable until the payment in full of the Aggregate Unpaids (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted) and shall automatically terminate on the date this Agreement and the CSA terminate in accordance with their respective terms.



Section 1.6.    Characterization.
If, notwithstanding the intention of the parties expressed in Section 1.1(b), any transfer by TPNA to the SPE of Receivables hereunder shall be characterized in any manner other than a true sale or true contribution or such transfer for any reason shall be ineffective or unenforceable, then this Agreement shall be deemed to constitute a security agreement under the applicable UCC and other applicable law. For this purpose and without being in derogation of the parties’ intention that each transfer shall constitute a true sale or true contribution and absolute assignment thereof, TPNA hereby grants to the SPE and its assigns a security interest in all of TPNA’s right, title and interest in, to and under the Receivables Assets and all proceeds thereof, whether existing as of the close of business on the Initial Cutoff Date or thereafter arising through and including the Termination Date (collectively, the “SPE’s Collateral”), to secure the prompt and complete payment of a loan deemed to have been made by the SPE to TPNA in an amount equal to the aggregate Purchase Price for the Purchased Receivables and the Purchase Price that would have been payable for the Contributed Receivables had they not been contributed to the SPE’s capital, together with all other obligations of TPNA hereunder, which security interest, TPNA hereby represents and warrants, is valid, duly perfected and prior to all Liens (other than Permitted Liens). The SPE and its assigns shall have, in addition to the rights and remedies which they may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other applicable law, which rights and remedies shall be cumulative.
Article II
Representations and Warranties
Section 2.1.    Representations and Warranties of TPNA.
TPNA hereby represents and warrants to the SPE on the Closing Date and on each date thereafter on which a Receivable is sold and/or contributed hereunder prior to the Termination Date:
(a)    Organization; Power; Qualification. TPNA (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has all requisite power and authority, and the legal right, (i) to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged and (ii) execute, deliver and perform its obligations under the Transaction Documents to which it is a party, (c) is qualified to do business in, and is in good standing in, every jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, and (d) is in compliance with all Requirements of Law and its Contractual Obligations except, in each case (other than with respect to clause (a) or clause (b)(ii) above) to the extent that the failure to comply therewith could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.



(b)    Authorization; Enforceability. TPNA has the right, power and authority and has taken all necessary limited liability company and other action to authorize the execution, delivery and performance of this Agreement and each of the other Transaction Documents to which it is a party in accordance with their respective terms, the sales of Receivables hereunder and the consummation of the transactions contemplated in this Agreement and the other Transaction Documents to which TPNA is a party. This Agreement and each of the other Transaction Documents to which TPNA is a party have been duly executed and delivered by the duly authorized officers of TPNA, and each such document constitutes a legal, valid and binding obligation of TPNA, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(c)    No Legal Bar. The execution, delivery and performance of this Agreement and the other Transaction Documents to which TPNA is a party, the sales of Receivables Assets hereunder and the use of the proceeds thereof (a) will not violate any Requirement of Law or any Contractual Obligation of TPNA and (b) will not result in, or require, the creation or imposition of any Lien on any of its properties or revenues pursuant to any Requirement of Law or any such Contractual Obligation (other than the Liens created by the Transaction Documents), except to the extent such violation or Lien, could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. The transactions evidenced by this Agreement, the RSCA and the Transaction Documents constitute a “Qualified Receivables Transaction” as defined in the Senior Bank Credit Agreement.
(d)    Litigation. There are no actions, suits, investigations, criminal prosecutions, civil investigative demands, imposition of criminal or civil fines or penalties, claims, disputes or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of TPNA, threatened against or affecting TPNA (i) that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) as of the Closing Date, that involve this Agreement.
(e)    No Default. TPNA is not in default under or with respect to any Contractual Obligation that would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Unmatured Termination Event or Termination Event has occurred and is continuing.
(f)    Ownership of Receivables Assets; Liens. Immediately prior to their sale hereunder, TPNA has good title to, or valid licenses of, all of the Receivables Assets, except where such failure to have good title or valid leasehold interests could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. None of the Receivables Assets is subject to any Lien other than Permitted Liens.



(g)    Taxes. TPNA has filed or caused to be filed all Federal, material state and other Tax returns that are required to be filed and has paid all Taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other Taxes imposed on it or any of its property by any Governmental Authority to the extent such Taxes have become due and payable (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of TPNA or the Performance Guarantor); no Tax Lien has been filed, and, to the knowledge of TPNA, no claim is being asserted, with respect to any such Tax that could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(h)    Federal Regulations. No part of the proceeds of the sale of Receivables Assets hereunder will be used (a) for “buying” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U as now and from time to time hereafter in effect for any purpose that violates the provisions of the regulations of the Board or (b) for any purpose that violates the provisions of the regulations of the Board. No more than 25% of the assets of TPNA consist of “margin stock” as so defined.
(i)    Investment Company Act; Other Regulations. TPNA is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j)    Accuracy of Information, etc. No statement or information, other than projections, pro forma financial statements, forward-looking statements, estimates with respect to future performance and information of a general economic or industry specific nature, contained in this Agreement, any other Transaction Document or any other document, certificate or statement furnished by or on behalf of TPNA to the Administrative Agent and the Lenders for use in connection with the transactions contemplated by this Agreement or the other Transaction Documents, contained as of the date such statement, information, document or certificate was so furnished, any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained herein or therein, taken as a whole, not misleading in light of the circumstances under which such statements were made (giving effect to all supplements thereto). The projections, pro forma financial information, forward-looking statements and estimates with respect to future performance contained in the materials referenced above are based upon good faith estimates and assumptions believed by management of TPNA or the Performance Guarantor to be reasonable at the time made, it being recognized by the Administrative Agent and the Lenders that such financial information as it relates to future events is not to be viewed as fact and that actual results during the period or periods covered by such financial information may differ from the projected results set forth therein by a material amount.
(k)    Solvency. On the Closing Date and on each date thereafter on which a Receivable of TPNA is sold and/or contributed hereunder prior to the Termination Date, TPNA is Solvent.



(l)    OFAC; Anti-Money Laundering; Patriot Act. TPNA is in compliance, in all material respects, with the Patriot Act. TPNA or the Performance Guarantor has implemented and maintains in effect policies and procedures designed to ensure compliance by TPNA, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and TPNA, its Subsidiaries and their respective officers and employees and to the knowledge of the Performance Guarantor its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (i) TPNA nor any Subsidiary or to the knowledge of TPNA or such Subsidiary any of their respective directors, officers or employees, or (ii) to the knowledge of TPNA, any agent of TPNA or any Subsidiary that will act in any capacity in connection with or benefit from the receivables purchase facility established by the Transaction Documents, is a Sanctioned Person. No use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(m)    Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, TPNA or any other Transaction Document (other than (i) as have already been obtained and are in full force and effect and (ii) filings to perfect security interests granted pursuant to the Transaction Documents).
(n)    Ownership of TPNA. TPNA is a Wholly-Owned Subsidiary of the Performance Guarantor.
(o)    Places of Business and Locations of Records. TPNA’s principal place of business, chief executive office and the other locations (if any) where its Records are located are at the addresses listed on Exhibit II or such other locations of which the SPE (and the Administrative Agent as its assignee) have been given prior notification in jurisdictions where all action required to maintain the perfection of the SPE’s and the Administrative Agent’s interests in the Receivables Assets has been taken and completed. TPNA’s Federal Employer Identification Number and Organizational Identification Number are correctly set forth on Exhibit II.
(p)    Names. Except as stated on Exhibit II and the name in which it has executed this Agreement, in the five (5) years prior to the Closing Date, TPNA has not used any legal names, trade names or assumed names.
(q)    Collections. All of TPNA’s Lock-Boxes and Collection Accounts into which Collections are paid are listed on Exhibit III¬ to this Agreement. TPNA has directed the Obligors on its Receivables to make payments thereon to a Lock-Box or a Collection Account that is listed on ¬ to this Agreement. TPNA has not granted any Person (other than the SPE, Master Servicer and the Administrative Agent and its assigns) access to or control of any such Lock-Box or Collection Account, or the right to take dominion and control of any such Lock-Box or Collection Account at a future time or upon the occurrence of a future event. To the extent that funds other than Collections are deposited into any Collection Account or Lock-Box, TPNA or Master Servicer can promptly trace and identify which funds constitute Collections.
(r)    Compliance with Credit and Collection Policy. TPNA has complied in all material respects with the Credit and Collection Policy with regard to each Receivable and the related Contract.



(s)    Good Title. Immediately prior to or contemporaneously with each sale hereunder, TPNA shall be the legal and beneficial owner of all of its then existing Receivables Assets with respect thereto, free and clear of any Lien except as created by the Transaction Documents and except for Permitted Liens.
(t)    Perfection. Assuming the filing of the financing statements approved by TPNA on the date hereof, this Agreement, together with such financing statements, is effective to create in favor of the SPE, a valid and perfected Security Interest in the Collateral, free and clear of any Lien except as created by the Transactions Documents and except for Permitted Liens.
(u)    Payments to TPNA. With respect to each Receivable sold or contributed hereunder, the SPE has given reasonably equivalent value to TPNA in consideration therefor and such transfer was not made for or on account of an antecedent debt. No transfer by TPNA of any Receivable under this Agreement is or may be voidable under any section of the Federal Bankruptcy Code.
(v)    Enforceability of Contracts. Each Contract with respect to each Receivable is effective to create, and has created, a valid and binding obligation of the related Obligor to pay the Outstanding Balance of such Receivable created thereunder and any accrued interest thereon, enforceable against such Obligor in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
Article III
Conditions Precedent
Section 3.1.    Conditions to Effectiveness.
Effectiveness of this Agreement is subject to the conditions precedent set forth in Section 7 of Omnibus Amendment No. 2 to the Existing RSCA and certain related documents, dated as of April 6, 2021.
Section 3.2.    Conditions Precedent to Subsequent Payments.
The SPE’s obligation to pay for any Purchased Receivable or to accept the contribution of any Contributed Receivable transferred hereunder after the Initial Cutoff Date shall be subject to the conditions precedent that: (a) the Facility Termination Date shall not have occurred under the CSA; and (b) on the date such Receivable is transferred hereunder, the following statements shall be true (and acceptance of the proceeds of any payment for such Purchased Receivable (or acceptance of the contribution of any Contributed Receivable) shall be deemed a representation and warranty by TPNA that such statements are then true):
(i)    the representations and warranties set forth in Article II are true and correct in all material respects on and as of the date such Receivable came into existence as though made on and as of such date (except to the extent such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date); and
(ii)    no Termination Event is continuing.



Notwithstanding the foregoing conditions precedent, upon payment of the Purchase Price for any Purchased Receivable (whether by payment of cash or by offset of amounts owed to the Buyer) and/or credit to the Capital Account of the Contributed Value of any Contributed Receivable, title to such Receivable and the other related Receivables Assets shall vest in the SPE, whether or not the conditions precedent to the SPE’s obligation to pay for such Receivable were in fact satisfied.
Article IV
Covenants
Section 4.1.    Affirmative Covenants of TPNA.
Until the date on which this Agreement terminates in accordance with its terms, TPNA hereby covenants as set forth below:
(a)    Additional Information. TPNA will maintain proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities, and will furnish or cause to be furnished to the SPE (or its assigns) promptly, from time to time, such information, documents, records or reports relating to the Receivables Assets or the condition or operations, financial or otherwise, of TPNA as the SPE (or its assigns) may from time to time reasonably request in order to protect the interests of the SPE (and its assigns) under or as contemplated by this Agreement.
(b)    Notices. TPNA will furnish to the SPE (and its assigns) each of the following:
(i)    Copies of Notices under Control Agreements. Promptly upon its receipt from any Collection Bank under any Control Agreement to which TPNA is a party of (A) any notice of default or (B) any demand for reimbursement which is not covered by available funds in the applicable Collection Accounts, a copy of the same.
(ii)    Adoption of a New Credit and Collection Policy. In the event TPNA adopts a Credit and Collection Policy which could reasonably be expected to adversely impact the Receivables of TPNA in any material respect, at least ten (10) Business Days prior to the effectiveness of any such adoption, a copy of TPNA’s proposed new Credit and Collection Policy, together with a request for the Administrative Agent’s consent thereto (which consent will not be unreasonably withheld or delayed).
(iii)    Termination Events or Unmatured Termination Events. Promptly upon learning of the occurrence of any Termination Event or Unmatured Termination Event, a statement of a Responsible Officer describing the same and, if applicable, the steps being taken with respect thereto.
(c)    Maintenance of Existence. TPNA will (i)(A) preserve, renew and keep in full force and effect its organizational existence and good standing (except that TPNA may merge with an into SMMC or Master Servicer), and (B) take all reasonable action to maintain all rights, privileges, franchises, licenses and permits necessary or desirable in the normal conduct of its business (except to the extent that failure to do so could not reasonably be expected to result in a Material Adverse Effect); and (ii) comply with all Requirements of Law (except to the extent that failure to comply therewith could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect).



(d)    Audits. TPNA will, from time to time during regular business hours (and without undue interference in TPNA’s business, taking into consideration seasonal accounting and reporting demands of TPNA) as requested by any Lender upon at least 30 calendar days’ advance notice, or, if an Amortization Event or Potential Amortization Event exists, upon at least five (5) Business Days’ advance notice, to TPNA and at the sole cost of TPNA, permit the Administrative Agent, or its agents or representatives, who may be accompanied by any of the Lenders (i) to examine and make copies of and abstracts from all Records in the possession or under the control of TPNA relating to the Receivables and the Related Security (including the related invoices but excluding, for all purposes of this clause (d), all other related Contracts unless there is a Dispute, in which case, upon request by any Lender, in addition to invoices, TPNA shall be required to provide the Administrative Agent with relevant excerpts and definitions from such other Contracts to assist the Administrative Agent and the Lenders in understanding the source of the Dispute), and (ii) to visit the offices and properties of such Loan Party for the purpose of examining such materials described in clause (i) above, and to discuss matters relating to TPNA’s financial condition or the Receivables and the Related Security or TPNA’s performance under any of the Transaction Documents and, in each case, with any of the officers or employees of TPNA having knowledge of such matters (each such examination, a “Review”); provided that, so long as no Facility Termination Event or Amortization Event has occurred and is continuing, (A) there shall be no more than one (1) such Review in any Fiscal Year, and (B) TPNA shall be responsible for the costs and expenses of only one (1) such Review.
(e)    Keeping and Marking of Records and Books.
(i)    TPNA will maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing Receivables in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all Receivables (including, without limitation, records adequate to permit the immediate identification of each new Receivable and all Collections of and adjustments to each existing Receivable). TPNA will give the SPE (or its assigns) notice of any material change in the administrative and operating procedures referred to in the previous sentence.
(ii)    TPNA will upon the reasonable request of the SPE (or its assigns) following the occurrence and during the continuance of a Termination Event hereunder: (1) mark each Contract with a legend describing the SPE’s ownership interest in the Receivables and further describing security interest in the Receivables of the Administrative Agent, and (2) deliver to the Administrative Agent all Contracts (including, without limitation, all multiple originals of any such Contract constituting an instrument, a document, a security or chattel paper) relating to the Receivables that are in TPNAs’ possession.
(f)    Compliance with Contracts and Credit and Collection Policy. TPNA will (i) timely and fully perform and comply in all material respects with all provisions, covenants and other promises required to be observed by it under the Contracts related to the Receivables, and (ii) not take any action inconsistent in any material respect with the Credit and Collection Policy in regard to any Receivable and the related Contract.



(g)    Separateness. TPNA acknowledges that each of the Administrative Agent and the Lenders is entering into the transactions contemplated by this Agreement, the RSCA and the CSA in reliance upon TPNA’s identity as a legal entity that is separate from the SPE. Therefore, from and after the date of execution and delivery of this Agreement, TPNA will not take any action inconsistent with the “separateness covenants” set forth in Section 5.1(f) of the CSA.
(h)    Collections. In the event any payments relating to Receivables Assets are remitted directly to TPNA, it will remit (or will cause all such payments to be remitted) directly to a Collection Bank and deposited into a Collection Account within two (2) Business Days following identification thereof and, at all times prior to such remittance, it will itself hold or, if applicable, will cause such payments to be held for the exclusive benefit of the SPE and its assigns. TPNA will transfer exclusive ownership, dominion and control of each Lock-Box and Collection Account to the SPE and shall not grant the right to take dominion and control of any Lock-Box or Collection Account at a future time or upon the occurrence of a future event to any Person, except to the SPE (or its assigns) as contemplated by this Agreement and the CSA.
(i)    Payment of Obligations. TPNA will pay and discharge, as the same shall become due and payable (beyond any period of grace or cure, if applicable), all its obligations and liabilities, including (a) material Tax liabilities before the same shall become delinquent or in default, except where (i) the validity or amount thereof is being contested in good faith by appropriate proceedings and (ii) TPNA has set aside on its books adequate reserves with respect thereto in accordance with GAAP, and (b) all lawful claims in excess of that, if unpaid, would by law become a Lien (other than a Permitted Lien) upon all or any material portion of the Receivables Assets.
Section 4.2.    Negative Covenants of TPNA.
Until the date on which this Agreement terminates in accordance with its terms, TPNA hereby covenants that:
(a)    Change in Name, Jurisdiction of Incorporation, Offices and Records. It will not change (i) its name as it appears in the official public record in the jurisdiction of its incorporation (as contemplated by Section 9-503(a)(1) of the UCC), (ii) its status as a “registered organization” (within the meaning of Article 9 of any applicable enactment of the UCC), (iii) its organizational identification number, if any, issued by its jurisdiction of incorporation, or (iv) its jurisdiction of organization unless it shall have: (A) given the Administrative Agent at least ten (10) days’ prior written notice thereof; (B) at least three (3) Business Days prior to such change, delivered to the Administrative Agent all financing statements, instruments and other documents reasonably requested by the Administrative Agent in connection with such change or relocation and (C) solely if requested by the Administrative Agent, caused an opinion of counsel reasonably acceptable to the Administrative Agent to be delivered to the Administrative Agent to the effect that the SPE’s security interest is valid and perfected, such opinion to be in form and substance similar to the related opinion delivered on the Closing Date and otherwise reasonably acceptable to the Administrative Agent.



(b)    Change in Payment Instructions to Obligors. It will not add or terminate any bank as a Collection Bank, or make any change in the instructions to Obligors of Receivables regarding payments to be made to any Lock-Box or Collection Account, unless the Administrative Agent shall have received, (i) at least twenty (20) days before the proposed closing date therefor, written notice of such addition, termination or change, and (ii) with respect to the addition of a Collection Account, an executed Control Agreement with respect to the new Collection Account prior to depositing any Collections therein; provided, however, that it may make changes in instructions to Obligors regarding payments if such new instructions require such Obligor to make payments to another existing Lock-Box that clears through a Collection Account subject to a Control Agreement or to another existing Collection Account that is subject to a Control Agreement.
(c)    Modifications to Contracts. Except as otherwise permitted in its capacity as a sub-Servicer pursuant to the CSA, it will not extend, amend or otherwise modify the payment terms of any Receivable or any Contract related to such Receivable in any material respect other than in accordance with its Credit and Collection Policy.
(d)    Sales, Liens. Other than the ownership and security interests contemplated by the Transaction Documents, it will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, or create or suffer to exist any Lien upon (including, without limitation, the filing of any financing statement) or with respect to, any Receivables Asset, or upon or with respect to any Contract under which any Receivable arises, or any Lock-Box or Collection Account, or assign any right to receive income with respect thereto (other than, in each case, the creation of a security interest therein in favor of the SPE provided for herein), and it will defend the right, title and interest of the SPE in, to and under any of the foregoing property, against all claims of third parties claiming through or under it.
(e)    Accounting for Transfer. Except for tax and accounting purposes, it will not treat (the transactions contemplated hereby in any manner other than the sale and absolute assignment of the Receivables and the Related Security by it to the SPE (except to the extent that such transactions are not recognized on account of consolidated financial reporting in accordance with GAAP).
(f)    Use of Proceeds. TPNA will not use any proceeds of the sale of Receivables hereunder, either directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of “purchasing or carrying” any margin stock. No part of the proceeds of any sale of Receivables hereunder will be unlawfully used directly or indirectly to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Country, or in any other manner that will result in any violation by any Person (including the Administrative Agent and each of the Lenders) of any Anti-Terrorism Laws. TPNA will maintain in effect policies and procedures designed to ensure compliance by TPNA, its Subsidiaries and their respective directors, officers, employees and agents in all material respects with Anti-Corruption Laws and applicable Sanctions, and TPNA, its Subsidiaries and, to their knowledge, their respective directors, officers, employees and agents, will remain in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects.
(g)    Deposits to Lock-Boxes and Collection Accounts. Other than Incidental Deposits, TPNA will not knowingly deposit or otherwise credit to any Collection Account or Lock-Box any cash or cash proceeds other than Collections.




Article V
Termination Events
Section 5.1.    Termination Events.
The occurrence of any one or more of the following events shall constitute a Termination Event:
(a)    TPNA or the Performance Guarantor shall fail to make any payment or deposit when required hereunder (taking into account any applicable period of grace) and such failure shall continue for five (5) Business Days.
(b)    Default in the performance, or breach, of any covenant or agreement on the part of TPNA contained in Section 4.1(b)(iii), Section 4.1(c)(i)(A) or Sections 4.2(a), (b) and (d)(g).
(c)    Default in the performance, or breach, of any covenant or agreement of TPNA or the Performance Guarantor in this Agreement or any other Transaction Document to which such Person is a party (excluding any covenant or agreement which is specifically addressed elsewhere in this Section 5.1), and the continuance of such default or breach for a period of thirty (30) days after the earlier to occur of (i) notice from the SPE or the Administrative Agent of such non-performance or non-observance, or (ii) the date on which a Responsible Officer of TPNA or the Performance Guarantor has knowledge of such non-performance or non-observance.
(d)    (i) Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of TPNA this Agreement, in any other Transaction Document to which TPNA is a party, or in any document delivered in connection herewith or therewith that is subject to materiality or Material Adverse Effect qualifications, shall be incorrect or misleading in any respect when made or deemed made, or (ii) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of TPNA in this Agreement, any other Transaction Document to which TPNA is a party, or in any document delivered in connection herewith or therewith that is not subject to materiality or Material Adverse Effect qualifications, shall be incorrect or misleading in any material respect when made or deemed made and, in each case, such breach continues for a period of thirty (30) days after the earlier to occur of (i) notice from SPE or the Administrative Agent of such breach , or (ii) the date on which a Responsible Officer of TPNA has knowledge of such breach; provided that to the extent such false or misleading representation occurs under any of Section 2.1(q) through and including Section 2.1(v), no Termination Event shall occur under this Section 5.1(d) if a Purchase Price Credit is granted and realized upon or paid in cash as provided in Section 1.3.
(e)    Any Transaction Document to which TPNA or the Performance Guarantor is a party or any material provision thereof shall for any reason cease to be valid and binding on TPNA or the Performance Guarantor, as the case may be, or the Performance Guarantor shall assert that any Transaction Document is not enforceable in accordance with its terms.



(f)    TPNA or the Performance Guarantor shall (i) commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets; or (ii) there shall be commenced against TPNA or the Performance Guarantor any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed or undischarged for a period of 60 days; or (iii) there shall be commenced against TPNA or the Performance Guarantor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) TPNA or the Performance Guarantor shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) TPNA or the Performance Guarantor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or (vi) or TPNA or the Performance Guarantor shall make a general assignment for the benefit of its creditors.
(g)    A Change of Control shall occur with respect to TPNA or the Performance Guarantor.
(h)    The Performance Guarantor or TPNA shall (i) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the “Loans” under and as defined in the Senior Bank Credit Agreement) on the scheduled or original due date with respect thereto; or (ii) default in making any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; (iii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable; or (iv) there occurs under any Swap Agreement an Early Termination Date (as defined in such Swap Agreement) resulting from (A) any Event of Default (as so defined) under such Swap Agreement as to which the Performance Guarantor or any TPNA is the Defaulting Party (as defined in such Swap Agreement) or (B) any Termination Event (as so defined) under such Swap Agreement as to which the Performance Undertaking or any Restricted Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Performance Undertaking or TPNA as a result thereof is greater than $50,000,000; provided that a default, event or condition described in clause (i), (ii) or (iii) of this paragraph (h) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i), (ii) and (iii) of this paragraph (h) shall have occurred and be continuing with respect to Indebtedness the aggregate outstanding principal amount of which is $50,000,000 or more (all capitalized terms used in this paragraph (h) and not otherwise defined in this Agreement are used with the meanings ascribed thereto in the Senior Bank Credit Agreement).



(i)    One or more judgments or decrees shall be entered against TPNA or the Performance Guarantor involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has not disputed coverage) of $50,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 30 days from the entry thereof.
Section 5.2.    Remedies.
Upon the occurrence and during the continuation of a Termination Event, the SPE (or the Administrative Agent, as its ultimate assignee) may take any of the following actions: declare the Termination Date to have occurred, whereupon the Termination Date shall forthwith occur, without demand, protest or further notice of any kind, all of which are hereby expressly waived by TPNA; provided, however, that upon the occurrence of a Termination Event described in Section 5.1(f) with respect to TPNA, the Termination Date shall automatically occur, without demand, protest or any notice of any kind, all of which are hereby expressly waived by TPNA, and to the fullest extent permitted by applicable Requirements of Law, interest at the Default Rate shall accrue with respect to any amounts then due and owing by TPNA to the SPE under this Agreement. The aforementioned rights and remedies shall be without limitation and shall be in addition to all other rights and remedies of the SPE and its assigns otherwise available under any other provision of this Agreement, by operation of law, at equity or otherwise, all of which are hereby expressly preserved, including, without limitation, all rights and remedies provided under the UCC, all of which rights shall be cumulative. For the avoidance of doubt, the occurrence of the Termination Date shall result in the termination of sales of the Receivables Assets under this Agreement but shall not accelerate or permit the SPE or the Administrative Agent to accelerate, the due date for any amount payable under any Receivable.
Article VI
Indemnification
Section 6.1.    Indemnities by TPNA.
Without limiting any other rights that the SPE (or the Administrative Agent, as its ultimate assignee) may have hereunder or under applicable law, TPNA hereby agrees to indemnify the SPE, the Administrative Agent, each of the Lenders and each officer, director, manager, employee and agent of the SPE, the Administrative Agent or any Lender (herein individually each called an “Indemnified Party” and collectively called the “Indemnified Parties”) from and against any and all losses, claims, damages, reasonable expenses (including, without limitation, reasonable attorneys’ fees and disbursements) and liabilities (all of the foregoing being herein called the “Indemnified Amounts”) incurred by an Indemnified Party relating to or resulting from:
(i)    any representation or warranty made by TPNA (or any officers of TPNA) under or in connection with this Agreement, any other Transaction Document to which TPNA is a party or any other information or report required to be delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(ii)    the failure by TPNA to comply with any applicable Requirement of Law with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable Requirement of Law or any failure of TPNA to keep or perform any of its obligations, express or implied, with respect to any Contract;



(iii)    any failure of TPNA to perform its duties, covenants or other obligations in accordance with the provisions of any Transaction Document to which it is a party;
(iv)    any environmental liability, products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v)    any bona fide dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vi)    the commingling of Collections of Receivables by TPNA at any time with other funds;
(vii)    any failure of the SPE to acquire legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from TPNA, free and clear of any Lien (other than Permitted Liens) as a result of any action or inaction of TPNA;
(viii)    any failure to vest and maintain vested in TPNA a valid and perfected ownership interest or a first priority perfected Security Interest in the Receivables Assets, free and clear of any Lien (except Permitted Liens) as a result of any action or inaction of TPNA;
(ix)    [Reserved];
(x)    the failure of TPNA to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the transfer of the Receivables Assets to the SPE, whether on the date hereof or at any subsequent time, except to the extent such failure or delay is caused by the SPE (or the Administrative Agent, as its assignee);
(xi)    any action or omission by TPNA which reduces or impairs the rights of the SPE (or the Administrative Agent, as its ultimate assignee) with respect to the Receivables Assets or the value of the Receivables Assets (other than at the direction of the SPE or the Administrative Agent and except as contemplated by the Transaction Documents);
(xii)    the failure of any Receivable included as an Eligible Receivable on any Servicer Report to be an Eligible Receivable at the time so included; and
(xiii)    any attempt by any Person to void any sale hereunder or the Security Interest in the Receivables Assets granted hereunder, whether under statutory provision, common law or equitable action;
excluding, however, in each of the foregoing instances:
(A)    Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted solely from the gross negligence or willful misconduct on the part of the applicable Indemnified Party;



(B)    Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible solely on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(C)    Excluded Taxes (as defined in the CSA);
provided, however, that nothing contained in this Section shall limit the liability of TPNA or limit the recourse of any Indemnified Party to TPNA for amounts otherwise specifically provided to be paid by TPNA under the terms of the Transaction Documents.
The provisions of this Section 6.1 shall survive termination of this Agreement, the RSA and the CSA.
Section 6.2.    Other Costs and Expenses.
TPNA shall pay (a) all reasonable out-of-pocket expenses incurred by the Administrative Agent (as the SPE’s ultimate assignee) (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the preparation, negotiation, execution, delivery and administration of this Agreement and the other Transaction Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and (b) all out of pocket expenses incurred by the Administrative Agent and the Lenders (including the fees, charges and disbursements of outside counsel to the Administrative Agent and the Lenders) in connection with the enforcement or protection of its rights against TPNA in connection with this Agreement and the other Transaction Documents to which TPNA is a party, including its rights under this Section.
Article VII
Miscellaneous
Section 7.1.    Waivers and Amendments.
(a)    No failure or delay on the part of the SPE (or its assigns) in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other further exercise thereof or the exercise of any other power, right or remedy. The rights and remedies herein provided shall be cumulative and nonexclusive of any rights or remedies provided by applicable Requirement of Law. Any waiver of this Agreement shall be effective only in the specific instance and for the specific purpose for which given.
(b)    No provision of this Agreement may be amended, supplemented, modified or waived except in writing signed by TPNA and the Administrative Agent (as the SPE’s ultimate assignee).
Section 7.2.    Notices.
The provisions of Section 12.2 of the CSA shall apply to all notices to be given under this Agreement. All communications and notices provided for hereunder shall be given to the parties hereto at the following addresses or facsimile numbers:
If to TPNA:    1000 Tempur Way
Lexington, KY 40511
Attention: James Schockett
Phone: (859) 455-2026



Fax: n/a
Email: James.Schockett@tempursealy.com
If to the SPE:    1000 Tempur Way
Lexington, KY 40511
Attention: Santiago X. Bravo
Phone: (859) 455-4728
Fax: n/a
Email: Santiago.Bravo@tempursealy.com
With a copy to:
Wells Fargo Bank, National Association
1100 Abernathy Rd., NE
16th Floor, Suite 1600
Atlanta, GA 30328-5657
Attention:    Jonathan Davis
Email:        WFCFReceivablesSecuritizationAtlanta@wellsfargo.com; jonathan.davis@wellsfargo.com
Phone:        (770) 508-2162;     cell: (404) 430-3777
Fax:        (855) 818-1932
Section 7.3.    Protection of Ownership Interests of the SPE.
(a)    From time to time, at its expense, TPNA will take all necessary action to establish and maintain, irrevocably in the SPE: (i) legal and equitable title to the Receivables and (ii) all of TPNA’s right, title and interest in the Related Security associated with the Receivables, in each case, free and clear of any Liens other than Permitted Liens.
(b)    At any time following the occurrence and during the continuance of a Termination Event hereunder, the SPE (or its assigns) may, at TPNA’s sole cost and expense, direct TPNA to notify the Obligors of Receivables of the ownership interest of the SPE (or its assigns) under this Agreement.
(c)    If, following the occurrence and during the continuance of a Termination Event hereunder, TPNA fails to perform any of its obligations hereunder, the SPE (or its assigns) may (but shall not be required to) perform, or cause performance of, such obligations, and the SPE’s (or such assigns’) costs and expenses incurred in connection therewith shall be payable by TPNA as provided in Section 6.2. TPNA irrevocably authorizes the SPE (and its assigns) at any time and from time to time in the sole discretion of the SPE (or its assigns), and appoints the SPE (and its assigns) as its attorney(ies)-in-fact, to act on behalf of TPNA to file on behalf of TPNA, as debtor, all financing statements, continuation statements and amendments thereto or assignments thereof, and execute such other instruments or notices, as may be reasonably necessary or desirable in the SPE’s (or its assigns’) sole discretion to perfect and to maintain the perfection and priority of the interest of the SPE in the Receivables Assets. This appointment is coupled with an interest and is irrevocable.



(d)    (i) TPNA acknowledges and agrees that it is not authorized to, and will not, file financing statements or other filing or recording documents with respect to the Receivables Assets (including any amendments thereto, or continuation or termination statements thereof), without the express prior written approval by the Administrative Agent (as the SPE’s assignee), consenting to the form and substance of such filing or recording document, and (ii) TPNA hereby approves, authorizes and ratifies any filings or recordings made by or on behalf of the Administrative Agent (as the SPE’s assign) in connection with the perfection of the Security Interests in favor of the SPE or the Administrative Agent (as the SPE’s ultimate assignee).
Section 7.4.    Confidentiality.
The parties agree to be bound by the provisions of Section 12.5 of the CSA with the same force and effect as if fully set forth herein.
Section 7.5.    Termination. SPE may, at any time with five (5) Business Days’ written notice to TPNA, terminate this transaction. Subject to Section 1.2(c), any Receivables originated before the date of such termination will be subject to purchase by SPE at the Purchase Price thereof on the date of such termination.
Section 7.6.    CHOICE OF LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH SHALL APPLY HERETO) EXCEPT TO THE EXTENT THAT THE PERFECTION OF the SPE’S SECURITY INTEREST IN THE RECEIVABLES ASSETS OR REMEDIES HEREUNDER IN RESPECT THEREOF ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
Section 7.7.    CONSENT TO JURISDICTION.
EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO THIS AGREEMENT, AND EACH OF THE PARTIES HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST TPNA IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY TPNA AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY AFFILIATE THEREOF INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH SELLER PARTY PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN THE BOROUGH OF MANHATTAN, NEW YORK.



Section 7.8.    WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY TPNA PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Section 7.9.    Integration; Binding Effect; Survival of Terms.
(a)    This Agreement and each other Transaction Document contain the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof superseding all prior oral or written understandings.
(b)    This Agreement shall be binding upon and inure to the benefit of TPNA, the SPE and their respective successors and permitted assigns (including any trustee in bankruptcy). TPNA may not assign any of its rights and obligations hereunder or any interest herein without the prior written consent of the Administrative Agent (as the SPE’s ultimate assignee). The SPE may assign at any time its rights and obligations hereunder and interests herein to any other Person without the consent of TPNA. Without limiting the foregoing, TPNA acknowledges that the SPE may collaterally assign to the Administrative Agent, its rights, remedies, powers and privileges hereunder and that the Administrative Agent may further assign such rights, remedies, powers and privileges to the extent permitted in the CSA. TPNA agrees that the Administrative Agent (as the ultimate assignee of the SPE), shall, subject to the terms of the CSA, have the right to enforce this Agreement and to exercise directly all of the SPE’s rights and remedies under this Agreement (including, without limitation, the right to give or withhold any consents or approvals of the SPE to be given or withheld hereunder), and TPNA agrees to cooperate fully with the Administrative Agent in the exercise of such rights and remedies.
(c)    This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms and shall remain in full force and effect until terminated in accordance with its terms; provided, however, that the rights and remedies with respect to (i) any breach of any representation and warranty made by TPNA pursuant to Article II, (ii) the indemnification and payment provisions of Article VI, and Sections 7.4 through and including 7.10 shall be continuing and shall survive any termination of this Agreement.
(d)    Notwithstanding anything herein to the contrary, any Person into which TPNA may be merged or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which TPNA shall be a party, or any Persons succeeding to the business of TPNA (so long as such person is an Affiliate of TPNA), shall be the successor to TPNA hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided, however that such successor shall be an Affiliate of Master Servicer.



Section 7.10.    Counterparts; Severability; Section References.
This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. To the fullest extent permitted by applicable law, delivery of an executed counterpart of a signature page of this Agreement by telefacsimile or electronic image scan transmission (such as a “pdf” file) will be effective to the same extent as delivery of a manually executed original counterpart of this Agreement. Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Unless otherwise expressly indicated, all references herein to “Article,” “Section,” “Schedule” or “Exhibit” shall mean articles and sections of, and schedules and exhibits to, this Agreement.
Section 7.11.    Bankruptcy Petition.
TPNA covenants and agrees that, prior to the date that is two years and one day after the payment in full of all outstanding obligations of the SPE under the CSA, it will not institute against, or join any other Person in instituting against, the SPE, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States.
Section 7.12.    Patriot Act.
The Administrative Agent (as the SPE’s ultimate assignee) hereby notifies TPNA that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Performance Guarantor and its Subsidiaries, which information may include the name and address of TPNA and its Subsidiaries and other information that will allow the Administrative Agent to identify such parties in accordance with the Patriot Act.
<Signature pages follow>




IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized officers as of the date hereof.

TEMPUR-PEDIC NORTH AMERICA, LLC

By: ________________________
Name: Bhaskar Rao
Title: Executive Vice President and Chief Financial Officer




TEMPUR SEALY RECEIVABLES, LLC
BY: TEMPUR-PEDIC NORTH AMERICA, LLC, ITS MANAGER

By: _______________________
Name: James M. Schockett
Title: Vice President and Treasurer





Exhibit I
Definitions
This is Exhibit I to the Agreement (as hereinafter defined). As used in the Agreement and the Exhibits and Schedules thereto, capitalized terms have the meanings set forth in this Exhibit I (such meanings to be equally applicable to the singular and plural forms thereof). If a capitalized term is used in the Agreement, or any Exhibit or Schedule thereto, and is not otherwise defined therein or in this Exhibit I, such term shall have the meaning assigned thereto in the CSA.
Administrative Agent” has the meaning specified in the Preliminary Statements.
Affiliate” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
Agreement” has the meaning specified in the preamble.
Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Performance Guarantor, TPNA, SMMC or the SPE from time to time concerning or relating to bribery or corruption.
Available Cash” means, on any date of determination, cash available to the SPE from any source that is not required to be paid to or set aside for the benefit of the Administrative Agent on such date under the CSA.
Board” means the Board of Governors of the Federal Reserve System of the United States (or any successor).
Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close, provided, that (i) with respect to notices and determinations in connection with, and such day is also a day for trading by and between banks in Dollar deposits in the London interbank Eurodollar market.
Calculation Period” means each calendar month, or portion thereof, from and after the Closing Date.
Capital Account” means TPNA’s capital account in the SPE.
Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing, but excluding any debt securities convertible into any of the foregoing.
Change of Control” means any of the following
(a) the occurrence of a “Change of Control” (as defined in the Senior Credit Agreement);



(b) TPNA or the SPE shall cease to be a direct or indirect Wholly Owned Subsidiary of the Performance Guarantor; or
(c) the SPE shall cease to be a direct Wholly Owned Subsidiary of TPNA.
Closing Date” has the meaning specified in Section 1.1.
Code” means the Internal Revenue Code of 1986, as amended.
Collection Account” means each concentration account, depositary account, lock-box clearing account or similar account in which any Collections are collected or deposited and which is listed on Exhibit III hereto (as such exhibit may be modified from time to time in connection with the closing or opening of any Collection Account in accordance with the terms of the CSA).
Collection Bank” means, at any time, any bank at which a Collection Account or Lock-Box is maintained.
Collections” means, with respect to any Receivable, all cash collections and other cash proceeds in respect of such Receivable, including, without limitation, all Interest, Finance Charges or other related amounts accruing in respect thereof and all cash proceeds of Related Security with respect to such Receivable.
Contract” means, with respect to any Receivable, any and all instruments, agreements, invoices or other writings (including an agreement evidenced by a purchase order or similar document) pursuant to which such Receivable arises or which evidences such Receivable.
Contractual Obligation” means as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
Contributed Receivables” has the meaning specified in Section 1.1(a).
Contributed Receivables Assets” has the meaning specified in Section 1.1(a).
Contributed Value” means, with respect to any Receivable that becomes a Contributed Receivable, an amount equal to the Purchase Price that would have been payable therefor had such Receivable been sold to the SPE pursuant to this Agreement in lieu of being contributed to its capital.
Control Agreement” has the meaning specified in the CSA.
CSA” has the meaning specified in the Preliminary Statements.
Default Rate” means a per annum rate of interest equal to the Discount Rate computed with the Applicable Margin that applies from and after the occurrence and during the continuance of an Amortization Event (under and as defined in the CSA).
Dollars” and “$” means dollars in lawful currency of the United States.



Discount Factor” means a percentage calculated to provide the SPE with a reasonable return on its investment in the Receivables after taking account of (i) the time value of money based upon the anticipated dates of collection of the Receivables and the cost to the SPE of financing its investment in the Receivables during such period, and (ii) the risk of nonpayment by the Obligors. TPNA and the SPE may agree from time to time and at any time to change the Discount Factor based on changes in one or more of the items affecting the calculation thereof, provided that any change to the Discount Factor shall take effect as of the commencement of a Calculation Period, shall apply only prospectively and shall not affect the Purchase Price payment made prior to the Calculation Period during which TPNA and the SPE agree to make such change. As of the date of this Agreement, the Discount Factor is 1.5%.
Finance Charges” means, with respect to a Contract, any finance, interest, late payment charges or similar charges owing by an Obligor pursuant to such Contract.
GAAP” means generally accepted accounting principles in the United States as in effect from time to time.
Governmental Authority” means any nation or government (including any supra-national bodies such as the European Union or the European Central Bank), any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).
Incidental Deposits” means amounts arising in ordinary course of business or distinct circumstances that are deposited in the Collection Account with the aggregate total of such amounts in any Calculation Period not to exceed $200,000.
Initial Receivables” has the meaning specified in Section 1.1(a).
Initial Receivables Assets” has the meaning specified in Section 1.1(a).
Initial Cutoff Date” means February 28, 2017.
Lenders” has the meaning specified in the Preliminary Statements.
Lien” means any mortgage, pledge, hypothecation, cash collateral or other similar deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or other security agreement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).
Lock-Box” means each locked postal box associated with a Collection Account for the purpose of retrieving and processing payments made on the Receivables and which is listed on Exhibit III (as such exhibit may be modified from time to time in connection with the addition or removal of any Lock-Box in accordance with the terms of the CSA).
Master Servicer” has the meaning specified in the Preliminary Statements.



Material Adverse Effect” means any event which has a material adverse effect on (a) the assets, financial condition or operations of the Performance Guarantor, SMMC, TPNA or the SPE, (b) the ability of the Performance Guarantor, SMMC, TPNA or the SPE to perform its obligations under the Transaction Documents to which it is a party or by which it is bound, (c) the legality, validity, or enforceability of this Agreement, the RSCA, the CSA, the Performance Undertaking or any other Transaction Document to which the Performance Guarantor, SMMC,. TPNA or the SPE is a party, (d) the status, existence, perfection or priority of the Administrative Agent’s Security Interest in the Receivables generally or any significant portion of the Receivables or the proceeds thereof, or (e) the validity, enforceability, value or collectability of the Receivables generally or of any material portion of the Receivables.
Obligor” means a Person obligated to make payments pursuant to a Contract.
Omnibus Amendment No. 2” has the meaning specified in the CSA.
Organization Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and the operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
Originator” means SMMC or TPNA.
Outstanding Balance” means, on any date of determination with respect to any Receivable, the outstanding principal balance thereof.
Patriot Act” means the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
Performance Guarantor” means Tempur Sealy International, Inc., a Delaware corporation, and its successors and assigns.
Performance Undertaking” means the Performance Undertaking, dated as of April 12, 2017, by the Performance Guarantor in favor of the SPE and its assigns.
Permitted Liens” means, in respect of the Receivables Assets: (a) Liens arising pursuant to any Transaction Document; (b) Liens for taxes not yet due or that are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP; and (c) Liens securing obligations under the Senior Bank Credit Agreement that are released prior to or substantially contemporaneously with their sale or contribution pursuant to the Transaction Documents.
Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.



Purchase Price” means, with respect to any sale of Purchased Receivables hereunder, the aggregate price to be paid by the SPE to TPNA in accordance with Section 1.2 for the Purchased Receivables Assets being sold to the SPE, which price shall equal on any date (i) the product of (A) the Outstanding Balance of the Purchased Receivables on such date, multiplied by (B) one minus the Discount Factor in effect on such date, minus (ii) any Purchase Price Credits to be credited against the Purchase Price otherwise payable in accordance with Section 1.2.
Purchase Price Credit” has the meaning specified in Section 1.3.
Purchased Receivables” has the meaning specified in Section 1.1(a).
Purchased Receivables Assets” has the meaning specified in Section 1.1(a).
Receivable” means (i) a “Receivable” under and as defined in the RSA, or (ii) the indebtedness and other obligations owed (at the time it arises, and before giving effect to any transfer or conveyance contemplated under the Transaction Documents) to TPNA, whether constituting an account, chattel paper, an instrument, an intangible or a general intangible under the UCC, arising from the sale of goods or provision of services by TPNA and includes, without limitation, the obligation to pay any applicable Finance Charges with respect thereto. Indebtedness and other rights and obligations arising from any one transaction, including, without limitation, indebtedness and other rights and obligations represented by an individual invoice, shall constitute a Receivable separate from a Receivable consisting of the indebtedness and other rights and obligations arising from any other transaction; provided, however, that any indebtedness, rights or obligations referred to in the immediately preceding sentence shall be a Receivable regardless of whether the Obligor or TPNA treats such indebtedness, rights or obligations as a separate payment obligation.
Receivables Assets” has the meaning specified in Section 1.1(a).
Records” means, with respect to any Receivable, all Contracts and other documents, books, records and other information (including, without limitation, computer programs, tapes, disks, punch cards, data processing software and related property and rights) relating to such Receivable, any Related Security therefor and the related Obligor.
Regulation U” means Regulation U of the Board as in effect from time to time.
Related Security” means, solely to the extent applicable to any Receivable:
(i) all of TPNA’s right, title and interest (if any) in the goods, the sale of which by the applicable Originator gave rise to such Receivable,
(ii) all other Security Interests or Liens and property subject thereto from time to time, if any, purporting to secure payment of such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, together with all financing statements and security agreements describing any collateral securing such Receivable; provided that, prior to the Amortization Date, it is understood and agreed that notwithstanding anything herein or in any Transaction Document to the contrary, TPNA shall not be required to take any action to cause any such guarantee, letter of credit, insurance or other supporting obligation to be transferred to or for the benefit of, or otherwise assigned to, the Administrative Agent to the extent any such transfer or assignment requires the consent of any Person or is prohibited by applicable law,



(iii) all guaranties, letters of credit, insurance and other supporting obligations, agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise,
(iv) all service contracts and other contracts and agreements associated with such Receivable,
(v) all Records related to such Receivable,
(vi) all of TPNA’s right, title and interest in each Lock-Box and each Collection Account,
(vii) all of TPNA’s rights and remedies under the RSA and the Performance Undertaking; and
(viii) all proceeds of any of the foregoing.
Required Capital Amount” means $10,000,000.
Requirement of Law” means, as to any Person, the Organization Documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
Responsible Officer” of any Person, means the chief executive officer, president, chief financial officer or treasurer of such Person, but in any event, with respect to financial matters, the chief financial officer of such Person.
Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, Canada or Her Majesty’s Treasury of the United Kingdom.
Sanctioned Country” means at any time, a country or territory which is itself the subject or target of any comprehensive Sanctions (as of the Closing Date, Cuba, Iran, North Korea, Sudan, the Crimea region of Ukraine and Syria).
Sanctioned Person” means at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union, Canada or any EU member state, (b) any Person located, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons.
Security Interest” has the meaning ascribed thereto in Article 9 of the UCC.
Senior Bank Credit Agreement” has the meaning specified in the RSA.
SMMC” has the meaning specified in the Preliminary Statements.



Solvent” means when used with respect to any Person, means that, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the fair value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured; provided that the amount of any contingent or disputed liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability at such time.
SPE” has the meaning specified in the preamble.
Subsequent Receivables” has the meaning specified in Section 1.1(a).
Subsequent Receivables Assets” has the meaning specified in Section 1.1(a).
Subsidiary” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Performance Guarantor. Notwithstanding any provision herein to the contrary, Comfort Revolution LLC shall not be considered a Subsidiary of the Performance Guarantor for purposes of this Agreement or the other Transaction Documents prior to the date on which the Performance Guarantor or one or more of its Subsidiaries notifies the Administrative Agent (as the SPE’s ultimate assignee) that Comfort Revolution has become a Subsidiary Guarantor under and as defined in the Senior Credit Agreement.
TPNA” has the meaning specified in the preamble.
Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges in the nature of taxes imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Termination Date” means the earliest to occur of (i) the Facility Termination Date (as defined in the CSA), (ii) the Business Day immediately prior to the occurrence of a Termination Date under Section 5.1(f) hereof, (iii) the Business Day specified in a written notice to TPNA from the Administrative Agent (as the SPE’s ultimate assignee) following the occurrence of any other Termination Event, and (iv) the date which is 10 Business Days after the SPE’s and the Administrative Agent’s receipt of written notice from TPNA that TPNA wishes to terminate the facility evidenced by this Agreement.



Termination Event” has the meaning specified in Section 5.1.
TPNA” has the meaning specified in the preamble.
Transaction Documents” means, collectively, this Agreement, the RSA, the CSA, the Performance Undertaking, Omnibus Amendment No. 2, the Control Agreements, and all other instruments, documents, certificates, reports and agreements required to be executed and delivered pursuant to any of the foregoing.
Transfer Date” has the meaning specified in Section 1.1(a).
UCC” means the Uniform Commercial Code as in effect in the State of New York or, as the context may require, any other applicable jurisdiction.
Unmatured Termination Event” means an event which, with the passage of time or the giving of notice, or both, could constitute a Termination Event.
Wholly Owned Subsidiary” means, as to any Person, any other Person all of the Capital Stock of which (other than directors’ qualifying shares required by law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries.
All accounting terms not specifically defined herein shall be construed in accordance with GAAP. All terms used in Article 9 of the UCC in the State of New York, and not specifically defined herein, are used herein as defined in such Article 9.

Document


ANNEX C TO OMNIBUS AMENDMENT NO. 2

AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT

DATED AS OF APRIL 6, 2021

AMONG

TEMPUR SEALY RECEIVABLES, LLC, AS BORROWER,

TEMPUR SEALY INTERNATIONAL, INC., AS MASTER SERVICER,

THE LENDERS FROM TIME TO TIME PARTY HERETO

AND

WELLS FARGO BANK, NATIONAL ASSOCIATION, AS THE ADMINISTRATIVE AGENT





TABLE OF CONTENTS
PAGE
ARTICLE I. THE FACILITY 1
Section 1.1.    The Commitments....................................................................................................1
Section 1.2.    Requesting Advances................................................................................................2
Section 1.3.    Reductions................................................................................................................3
Section 1.4.    Payment Requirements............................................................................................3
Section 1.5.    Deemed Collections..................................................................................................4
Section 1.6.    Interest    ............................................................................................................…......4
Section 1.7.    Special Provisions Applicable to LMIR.......................................................................4
Section 1.8.    Designated Funding Offices.......................................................................................7
Section 1.9.    Taxes..........................................................................................................................7
Section 1.10.    Defaulting Lenders; Non-Consenting Lenders.........................................................10
ARTICLE II. PAYMENTS AND COLLECTIONS 11
Section 2.1.    Collections During the Revolving Period...................................................................11
Section 2.2.    Collections During the Liquidation Period.................................................................12
Section 2.3.    Payment Rescission...................................................................................................12
ARTICLE III. REPRESENTATIONS AND WARRANTIES 13
Section 3.1.    Representations and Warranties of Borrower..........................................................13
Section 3.2.    Representations and Warranties of Master Servicer................................................16
ARTICLE IV. CONDITIONS PRECEDENT 20
Section 4.1.    Conditions to the Amendment and Restatement Effective Date.............................20
Section 4.2.    Conditions Precedent to Each Advance after the Amendment and Restatement Effective Date...20
ARTICLE V. COVENANTS 21
Section 5.1.    Affirmative Covenants of Borrower and Master Servicer.........................................21
Section 5.2.    Negative Covenants of Loan Parties..........................................................................28
ARTICLE VI. ADMINISTRATION AND COLLECTION 30
Section 6.1.    Designation of Master Servicer................................................................................30
Section 6.2.    Duties of Master Servicer.........................................................................................30
Section 6.3.    Collection Accounts..................................................................................................31
Section 6.4.    Collection Notices.....................................................................................................32
Section 6.5.    Responsibilities of Borrower.....................................................................................32
Section 6.6.    Reports......................................................................................................................32
Section 6.7.    Servicing Fees............................................................................................................32
ARTICLE VII. FACILITY TERMINATION EVENTS 32



Section 7.1.    Facility Termination Events......................................................................................32
Section 7.2.    Remedies..................................................................................................................36
ARTICLE VIII. INDEMNIFICATION 36
Section 8.1.    Indemnities by Borrower..........................................................................................36
Section 8.2.    Indemnities by Master Servicer................................................................................39
Section 8.3.    Costs and Expenses...................................................................................................40
ARTICLE IX. ADMINISTRATIVE AGENT 41
Section 9.1.    Appointment and Authorization of Administrative Agent........................................41
Section 9.2.    Delegation of Duties..................................................................................................41
Section 9.3.    Exculpatory Provisions..............................................................................................42
Section 9.4.    Reliance by the Administrative Agent......................................................................42
Section 9.5.    Notice of Events........................................................................................................42
Section 9.6.    Non-Reliance on Other Lenders...............................................................................42
Section 9.7.    Indemnification of Administrative Agent.................................................................43
Section 9.8.    Administrative Agent in its Individual Capacity........................................................43
Section 9.9.    UCC Filings................................................................................................................43
ARTICLE X. ASSIGNMENTS; PARTICIPATIONS 44
Section 10.1.    Successors and Assigns.............................................................................................44
ARTICLE XI. GRANT OF SECURITY INTEREST 45
Section 11.1.    Grant of Security Interest.........................................................................................45
ARTICLE XII. MISCELLANEOUS 45
Section 12.1.    Waivers and Amendments.......................................................................................45
Section 12.2.    Notices......................................................................................................................46
Section 12.3.    Setoff........................................................................................................................46
Section 12.4.    Protection of Security Interests................................................................................47
Section 12.5.    Confidentiality..........................................................................................................47
Section 12.6.    Power of Attorney....................................................................................................48
Section 12.7.    Limitation of Liability................................................................................................49
Section 12.8.    CHOICE OF LAW........................................................................................................49
Section 12.9.    CONSENT TO JURISDICTION......................................................................................49
Section 12.10.    WAIVER OF JURY TRIAL.............................................................................................50
Section 12.11.    Integration; Binding Effect; Survival of Terms..........................................................50
Section 12.12.    Counterparts; Severability; Section References.......................................................50
Section 12.13.    Patriot Act.................................................................................................................50




EXHIBITS AND SCHEDULES
Exhibit I Definitions
Exhibit II Borrower’s Chief Executive Office, Records Locations, Federal Taxpayer ID Number and Organizational ID Number
Exhibit III Lock-Boxes and Collection Accounts
Exhibit IV Credit and Collection Policy
Exhibit V Form of Interim Report
Exhibit VI Form of Monthly Report
Exhibit VII Form of Performance Undertaking
Exhibit VIII Form of U.S. Tax Compliance Certificate
Exhibit IX Form of U.S. Tax Compliance Certificate
Exhibit XI Form of U.S. Tax Compliance Certificate
Exhibit XII Form of Borrowing Request

Schedule A Commitments




AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT dated as of April 6, 2021, is among:
(a)    Tempur Sealy Receivables, LLC, a Delaware limited liability company (“Borrower”),
(b)    Tempur Sealy International, Inc., a Delaware corporation (“TPX”), as initial Master Servicer,
(c)    Wells Fargo Bank, National Association, a national banking association (“Wells Fargo” or a “Lender”),
(d)    Sumitomo Mitsui Banking Corporation, a Japanese banking corporation (“SMBC” or a “Lender”), and
(e)    Wells Fargo Bank, National Association, a national banking association, as administrative agent for the Lenders (together with its successors in such capacity, the “Administrative Agent”).
Unless defined elsewhere herein, capitalized terms used in this Agreement shall have the meanings assigned to such terms in Exhibit I.
PRELIMINARY STATEMENTS
This Agreement amends and restates in its entirety that certain Credit and Security Agreement, dated as of April 12, 2017, by and among Borrower, Master Servicer, and Wells Fargo, as amended from time to time prior to the date hereof (the “Existing CSA”).
In consideration of the mutual covenants and agreements herein contained, the parties hereto hereby agree as follows:
ARTICLE I.
THE FACILITY
Section 1.1.    The Commitments. On the terms and subject to the conditions set forth in this Agreement, including the conditions set forth in Article IV: (a) From time to time during the Revolving Period, Borrower may request Advances in accordance with Section 1.2, and (b) each Lender, severally and not jointly, agrees to make Loans of its Percentage of the Principal amount requested on the applicable Borrowing Date; provided that (i) the Aggregate Principal at any one time outstanding may not exceed the lesser of (A) the amount of the Aggregate Commitment, and (B) the Borrowing Base, and (ii) the aggregate Principal amount of the requested Advance shall be not less than $500,000 or a larger integral multiple of $250,000. The Aggregate Commitment will automatically terminate on the Facility Termination Date.



Section 1.2.    Requesting Advances.
(a)    If, on any Business Day during the Revolving Period, there is Borrowing Availability, Borrower may request an Incremental Advance by (a) delivering a written request in the form of Exhibit XII to this Agreement (each, a “Borrowing Request”) to the Lenders, and (b) by entering the aggregate Principal amount of the requested Advance on-line in Wells Fargo’s electronic “C.E.O.” portal by 1:00 p.m. (New York City time) on the proposed Borrowing Date. The initial Advance shall be subject to Section 4.1 hereof, and all Advances (including the initial Advance and each Rollover Advance) shall be subject to Section 4.2 hereof. Each such request shall be irrevocable. On the Borrowing Date of each Incremental Advance, upon satisfaction of the applicable conditions precedent set forth in Article IV, each Lender shall initiate a wire transfer to the Administrative Agent’s Account, in immediately available funds, no later than 3:00 p.m. (New York City time), of an amount equal to its Percentage of the aggregate requested Principal, and the Administrative Agent will promptly wire the amounts received to the Facility Account.
(b)    (i) The Administrative Agent may, but shall not be required to, wire the entire amount of the requested Advance to the Facility Account in advance of receiving each Lender’s Percentage thereof, in reliance upon the assumption that each Lender will timely fund its Percentage thereof to the Administrative Agent’s Account. If, on the requested Borrowing Date, any Lender shall not have remitted the full amount that it is required to make available to the Administrative Agent’s Account in immediately available funds and if the Administrative Agent has made available to Borrower such amount on the requested Borrowing Date, then such Lender shall make the amount of such Lender’s Percentage of the requested Advance available to the Administrative Agent in immediately available funds, to the Administrative Agent’s Account, no later than 10:00 a.m. (New York time) on the first Business Day after the requested Borrowing Date (in which case, the interest accrued on such Lender’s portion of such Advance on the Borrowing Date shall be for the Administrative Agent’s separate account). (ii) If any Lender shall not remit the full amount that it is required to make available to the Administrative Agent’s Account in immediately available funds as and when required hereby and if the Administrative Agent has made available to Borrower such amount, then that Lender shall be obligated to immediately remit such amount to the Administrative Agent, together with interest at the Defaulting Lender Rate for each day until the date on which such amount is so remitted. A notice submitted by the Administrative Agent to any Lender with respect to amounts owing under this Section 1.2(b)(ii) shall be conclusive, absent manifest error. If the amount that a Lender is required to remit is made available to the Administrative Agent, then such payment to the Administrative Agent shall constitute such Lender’s Loan for all purposes of this Agreement. If such amount is not made available to the Administrative Agent on the Business Day following the Borrowing Date, the Administrative Agent will notify Borrower of such failure to fund and, upon demand by the Administrative Agent, Borrower shall pay such amount to the Administrative Agent for the Administrative Agent’s account within three (3) Business Days thereafter, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Advance.



(c)    The failure of any Lender to fund its Loan comprising part of any Advance requested in any Borrowing Request into the Administrative Agent’s Account shall not relieve any other Lender of its obligation hereunder to so fund its Loan on the proposed Borrowing Date, and no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by any other Lender on any Borrowing Date. In addition, no party other than the Administrative Agent shall be responsible for the failure of the Administrative Agent to promptly wire the Loans received by it in the Administrative Agent’s Account to the Facility Account. In the event that one or more Lenders fails to make its Loan by 3:00 p.m. (New York City time) on any Borrowing Date, the Administrative Agent shall notify each of the other Lenders not later than 5:00 p.m. (New York City time) on such date, and each of the other Lenders party to this Agreement as of such date shall make available to Borrower a supplemental Loan in a principal amount equal to the Principal amount that was unfunded multiplied by a fraction, the numerator of which is the Commitment of such Lender and the denominator of which is the aggregate Commitment of all Lenders (less the aggregate Commitment(s) of the Lender(s) failing to make Loans on such date), but in no event in excess of such Lender’s Commitment. Such supplemental Loans shall be made by wire transfer in same-day funds no later than 3:00 p.m. (New York City time) one Business Day following the related Borrowing Date. If any Lender which shall have failed to fund its Loan shall subsequently pay such amount, the Administrative Agent shall apply such amount pro rata to repay any supplemental Loans made by the other Lenders pursuant to this Section 1.2(c). Any payment of principal, interest, fees or other amounts payable to the account of a Defaulting Lender (whether voluntary or mandatory, at maturity or otherwise) shall be applied by the Administrative Agent first to all other Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Advances are held by the Lenders pro rata in accordance with their respective Percentages. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied to pay amounts owed by a Defaulting Lender pursuant to this Section 1.2(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of any other Lender as a result of such other Lender’s increased credit exposure following such reallocation.
Section 1.3.    Reductions. (a) If, on any Business Day, a Responsible Employee of Borrower determines or is advised that an Overadvance exists, Borrower shall notify the Lenders by Email, and Borrower shall pay to the Administrative Agent’s Account within two (2) Business Days thereafter (such date, a “Proposed Reduction Date”), an amount to be applied to reduce the Aggregate Principal, pro rata amongst the Lenders in accordance with their respective Percentages, such that after giving effect to such payment, no Overadvance exists and is continuing, and the Administrative Agent will promptly wire to each Lender its Percentage of the amount received.
(b) If, on any Business Day, Borrower wishes to make a voluntary reduction in the Aggregate Principal, Borrower shall notify Lenders by Email and wire transfer in immediately available funds to the Administrative Agent’s Account the amount of Aggregate Principal to be reduced which shall not be less than $1,000,000 or a larger integral multiple of $500,000 (each, an “Aggregate Reduction”). The Administrative Agent will promptly wire to each Lender its Percentage of the Aggregate Reduction so received.



(c) Borrower may, upon at least two (2) Business Days’ irrevocable written notice to the Administrative Agent (who will promptly notify each Lender), terminate in whole or permanently reduce in part pro rata amongst the Lenders in accordance with their respective Percentages, the unused portion of the Aggregate Commitment and the Facility Limit; provided that each partial reduction of the Facility Limit shall be in an aggregate amount of not less than $2,000,000.
Section 1.4.    Payment Requirements. All payments to the Administrative Agent for itself or for the benefit of the Lenders shall be made by wire transfer solely to the Administrative Agent’s Account in immediately available funds initiated no later than 2:00 p.m. (New York City time) on the Business Day when due, and, as applicable, upon receipt, the Administrative Agent shall promptly distribute to the Lenders their respective portions, if any, thereof. All computations of Interest and per annum Fees under the Transaction Documents shall be made on the basis of a year consisting of three hundred sixty (360) days for the actual number of days elapsed (or, in the case of Interest calculated by reference to the Alternate Base Rate, three hundred sixty-five (365) days or, in the case of a leap year, three hundred sixty-six (366) days), and the Administrative Agent, on behalf of all Lenders, shall invoice Borrower (with copies to the Lenders) for such Interest and per annum Fees. If any amount hereunder shall be payable on a day which is not a Business Day, such amount shall be payable on the next succeeding Business Day.
Section 1.5.    Deemed Collections. Upon the occurrence of any Dilution, Borrower shall be deemed to have received a Deemed Collection in the amount specified in the definition of “Deemed Collection,” and the Outstanding Balance of the Receivable(s) affected thereby shall be immediately reduced by the amount of such Deemed Collection. If, after giving effect to any Deemed Collection as a result of such Dilution, an Overadvance shall exist, Borrower shall make a payment to reduce Aggregate Principal in accordance with Section 1.3.
Section 1.6.    Interest. (a) Prior to the occurrence and continuance of a Facility Termination Event, the Principal of each Advance shall accrue Interest for each day at a rate per annum equal to the applicable Interest Rate. Upon the occurrence of a Facility Termination Event and during the continuance thereof, Aggregate Principal shall accrue Interest for each day at a rate per annum equal to the Default Rate.
(b)    On or before each Monthly Payment Date, the Administrative Agent shall calculate the aggregate amount of Interest (if any) owing for the Calculation Period then most recently ended (plus any unpaid Interest, if any, that was due and not paid on a prior Monthly Payment Date) and the Administrative Agent shall promptly notify Borrower and the Lenders of such amount not later than two (2) Business Days prior to such Monthly Payment Date.
(c)    Borrower shall pay to the Administrative Agent’s Account, for the ratable account of the Lenders in accordance with Article II, such accrued and unpaid Interest determined in accordance with this Article I.



Section 1.7.    Special Provisions Applicable to LMIR.
(a)    Violations of Law; Cost of Funding; Temporary Unavailability of LIBOR. If the Administrative Agent notifies Borrower that (i) any Lender has reasonably determined that funding its Loan at LMIR would violate any applicable law, rule, regulation, or directive of any Governmental Authority, whether or not having the force of law, (ii) any Lender has reasonably determined that LMIR does not accurately reflect the cost to such Lender of funding or maintaining its LMIR Loans, or (iii) the Administrative Agent is unable to obtain quotations of the one-month US LIBOR on the Reuters Screen LIBOR01 Page or any other page that may replace such page (the “LIBOR Screen Rate”) from time to time for the purpose of displaying offered rates of leading banks for London interbank deposits in United States dollars, as of 11:00 a.m. (London time) on such date, or if such day is not a Business Day, then the immediately preceding Business Day (or if not so reported, then as determined by the Administrative Agent from another recognized source for interbank quotation) and such determinations or unavailability of quotations described in the preceding clause (i), (ii) or (iii), as applicable, is not related to the planned cessation of LIBOR, subject to Sections 1.7(b) and (c), the Administrative Agent may suspend the availability of LMIR and require Interest on the Advances to accrue at Alternate Base Rate.
(b)    Anticipated Termination of LIBOR Quotations. The Administrative Agent will notify Borrower (i) promptly following the occurrence of a Benchmark Replacement Event or a Term SOFR Transition Event and (ii) at least 3 Business Days prior to the implementation of any Benchmark Replacement, Benchmark Replacement Adjustment or Benchmark Replacement Conforming Changes. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (i) the administration of, submission of, calculation of or any other matter related to the London interbank offered rate or with respect to any alternative, comparable or successor rate thereto, or replacement rate thereof (including any then-current Benchmark or any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement reference rate (including any Benchmark Replacement), as it may or may not be adjusted pursuant to Section 1.7(c), will be similar to, or produce the same value or economic equivalence of, the LIBOR Screen Rate or any other Benchmark, or have the same volume or liquidity as did the London interbank offered rate or any other Benchmark prior to its discontinuance or unavailability, or (ii) the effect or composition of any Benchmark Replacement Conforming Changes.



(c)    Benchmark Replacement Setting.
(i) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Transaction Document (and any Hedge Agreement shall be deemed not to be a “Transaction Document” for purposes of this Section 1.7(c)), if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a)(1) or (a)(2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document and (y) if a Benchmark Replacement is determined in accordance with clause (a)(3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from the Required Lenders.
Notwithstanding anything to the contrary herein or in any other Transaction Document, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Transaction Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document; provided that this clause (B) shall not be effective unless the Administrative Agent has delivered to the Lenders and Borrower a Term SOFR Notice. For the avoidance of doubt, other than as set forth in Section 1.7(b) above, the Administrative Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may elect or not elect to do so in its sole discretion.
(ii) Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, in consultation with the Borrower, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Transaction Document.



(iii) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify Borrower and the Lenders of (A) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (B) the implementation of any Benchmark Replacement, (C) the effectiveness of any Benchmark Replacement Conforming Changes, (D) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 1.7(c)(iv) below and (E) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 1.7(c), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Transaction Document, except, in each case, as expressly required pursuant to this Section 1.7(c).
(iv) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Transaction Document, at any time (including in connection with the implementation of a Benchmark Replacement), (A) if the then-current Benchmark is a term rate (including Term SOFR or USD LIBOR) and either (1) a 1-month tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (2) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that a 1-month tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may, in consultation with the Borrower, modify the tenor for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (B) if a 1-month tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the tenor for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(v) Benchmark Unavailability Period. Upon Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, Borrower may revoke any request for an Advance bearing interest at the LMIR during any Benchmark Unavailability Period and, failing that, Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to an Advance bearing interest at the Alternate Base Rate.
Section 1.8.    Designated Funding Offices. Each Lender may at its option make any Loan or otherwise perform its obligations hereunder through any of its offices, branches or Affiliates selected from time to time by such Lender and notified to Borrower (each, a “Designated Funding Office”), provided that any exercise of such option shall not affect the obligation of Borrower to turn over Collections in accordance with the terms of this Agreement. Any Designated Funding Office shall be considered part of such Lender; provided that such provisions that would be applicable with respect to Loans actually provided by an Affiliate or branch of such Lender shall apply to such Affiliate or branch to the same extent as they apply to such Lender.
Section 1.9.    Taxes.
(a)    For purposes of this Section 1.9, the term “applicable law” includes FATCA.



(b)    Any and all payments by or on account of any obligation of Borrower under this Agreement shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Lender receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(c)    Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the applicable Lender, timely reimburse it for the payment of, any Other Taxes.
(d)    Borrower shall indemnify each applicable Lender, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by or on behalf of such Lender or required to be withheld or deducted from a payment to the Administrative Agent for the account of such Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Administrative Agent and Borrower by the applicable Lender shall be conclusive absent manifest error.
(e)    [Reserved].
(f)    As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 1.9, such Loan Party shall deliver to the Administrative Agent and each applicable Lender the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to each applicable Lender.
(g)    (i) If any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under this Agreement, such Lender shall deliver to the Administrative Agent and the Loan Parties, at the time or times reasonably requested by the Loan Parties, such properly completed and executed documentation reasonably requested by the Loan Parties as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Loan Parties, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Loan Parties as will enable the Loan Parties to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 1.9(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the applicable Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing,



(A) if a Lender is a U.S. Person, such Lender shall deliver to Borrower on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) if a Lender is not a U.S. Person, such Lender shall, to the extent it is legally entitled to do so, deliver to the Loan Parties (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Loan Parties), whichever of the following is applicable:
(1) in the case of a Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under this Agreement, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E (or any successor forms) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under this Agreement, IRS Form W-8BEN or IRS Form W-8BEN-E (or any successor forms) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed copies of IRS Form W-8ECI (or any successor form);
(3) in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit IX to the effect that such Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E (or any successor forms); or
(4) to the extent a Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E (or any successor forms), a U.S. Tax Compliance Certificate substantially in the form of Exhibit X or Exhibit XI, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if such Lender is a partnership and one or more direct or indirect partners of such Lender are claiming the portfolio interest exemption, such Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit XII on behalf of each such direct and indirect partner;
(C) if A Lender is not a U.S. Person, such Lender shall, to the extent it is legally entitled to do so, deliver to the Administrative Agent and the Loan Parties (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Loan Parties), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Loan Parties to determine the withholding or deduction required to be made; and



(D) if a payment made to or for the benefit of any Lender under this Agreement would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Loan Parties at the time or times prescribed by law and at such time or times reasonably requested by the Loan Parties such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Loan Parties as may be necessary for the Loan Parties to comply with their obligations under FATCA and to determine that that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Loan Parties in writing of its legal inability to do so.
(h)    If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 1.9 (including by the payment of additional amounts pursuant to this Section 1.9), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i)    Each party’s obligations under this Section 1.9 shall survive the termination of the commitment and the repayment, satisfaction or discharge of all obligations under this Agreement.
Section 1.10.    Defaulting Lenders; Non-Consenting Lenders.
(a)    If any Lender is a Defaulting Lender or a Non-Consenting Lender, then Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.1), all of its interests, rights (other than its existing rights to payments pursuant to this Agreement and claims for indemnification under the other Transaction Documents) and obligations under this Agreement and the Transaction Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:



(i)    such Lender shall have received payment of an amount equal to accrued and unpaid Interest and the Principal funded by such Lender, accrued fees and all other amounts payable to it hereunder and under the other Transaction Documents as part of the purchase price from the assignee, or from Borrower;
(ii)    such assignment does not conflict with applicable law; and
(iii)    in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented or would have consented to the applicable amendment, waiver or consent.
(b)    A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply.
(c)    No Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent under this Agreement (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender. No Defaulting Lender shall be entitled to receive any Unused Fee for any period during which that Lender is a Defaulting Lender (and Borrower shall not be required to pay any such Unused Fee that otherwise would have been required to have been paid to that Defaulting Lender for such period).
(d)    If Borrower and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Advances of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Advances to be held pro rata by the Lenders in accordance with their respective Commitments, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to Unused Fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
ARTICLE II.
PAYMENTS AND COLLECTIONS
Section 2.1.    Collections During the Revolving Period. (a) On each Business Day during the Revolving Period, all Collections and Deemed Collections received by Master Servicer shall be administered in accordance with Section 6.2 and, except to the extent such Business Day is a Settlement Date and accrued and unpaid Aggregate Unpaids are then due and owing to the Administrative Agent, for the benefit of the Lenders, such Collections and Deemed Collections shall constitute the proceeds of a Rollover Advance as provided in Section 2.1(b).



(b)    Aggregate Principal shall not be required to be paid during the Revolving Period except to the extent that (i) an Overadvance exists pursuant to Section 1.3(a) or (ii) an Aggregate Reduction is desired in accordance with Section 1.3(b).
(c)    On each Business Day during the Revolving Period, subject to Section 2.1(d) and to Section 4.2, Collections that are not required to be used to pay Aggregate Unpaids that are then due and owing (including Aggregate Principal payable pursuant to Section 2.1(b)) shall be retained by Borrower as the proceeds of a Rollover Advance and shall be disbursed to TPNA in payment of the Purchase Price for Purchased Receivables under the RSCA in such amounts as Borrower may specify.
(d)    On each Monthly Payment Date during the Revolving Period, after deduction of Master Servicer’s Servicing Fee from Collections received (or deemed received) during the Calculation Period (or portion thereof) then most recently ended and any fees then due and owing by Borrower to the Independent Director, Master Servicer shall wire transfer to the Administrative Agent’s Account from the Collections received (or deemed received) during such Calculation Period (or portion thereof), an amount equal to the Required Amounts due and owing on such Monthly Payment Date. Following the Dominion Date, the Administrative Agent shall make distributions of the Servicing Fee and other Required Amounts from the Collections held by it in accordance with this Agreement.
(e)    If, on any Monthly Payment Date during the Revolving Period, there are insufficient Collections to pay all amounts required to be paid pursuant to Section 2.1(b) or Section 2.1(d), as applicable, (i) no Rollover Advance or Incremental Advance shall be made until such amounts have been paid in full, and (ii) Collections to be applied to the Required Amounts shall be applied in the following order of priority:
first, to accrued and unpaid Servicing Fees that are then due and owing to Master Servicer for the related Calculation Period if not withheld by Master Servicer prior to turnover of the Collections and to any fees then due and owing to the Independent Director;
second, to out-of-pocket expenses (if any) of the Administrative Agent and the Lenders that are then due and owing under Section 8.3;
third, to accrued and unpaid Interest then due and owing for the related Calculation Period, and any previously accrued Interest for a prior Calculation Period that remains unpaid; and
fourth, to all Fees accrued during the Calculation Period (or portion thereof) then most recently ended, plus any previously accrued Fees that remain unpaid.
Promptly after its receipt of funds for the benefit of any Lender pursuant to this Section 2.1, the Administrative Agent shall promptly forward to each such Lender in the type of funds received such Lender’s ratable share thereof.
Section 2.2.    Collections During the Liquidation Period.
(a)    On each day during the Liquidation Period, unless the Dominion Date shall have occurred, all Collections shall be administered in accordance with Section 6.2.



(b)    On each Payment Date during the Liquidation Period, unless the Dominion Date shall have occurred, Master Servicer shall wire transfer all Collections so held by Master Servicer (after deducting its Servicing Fee therefrom) to the Administrative Agent’s Account for distribution and application in the following order of priority:
first, (i) to Master Servicer, in payment of its Servicing Fee for the related Calculation Period to the extent not retained and (ii) to the Independent Director, in payment of any fees then due and owing;
second, to the Administrative Agent’s Account for distribution to the Administrative Agent and the Lenders, in payment of their respective out-of-pocket expenses in connection with the enforcement or protection of their rights under this Agreement and the other Transaction Documents, to the extent reimbursable under Section 8.3 and not otherwise paid by Borrower;
third, to the Administrative Agent’s Account for distribution to the Lenders, in payment of any accrued and unpaid Interest then due and owing for the related Calculation Period, and any previously accrued Interest for a prior Calculation Period that remains unpaid;
fourth, to the Administrative Agent’s Account for distribution to the Lenders, in payment of any Fees accrued during the Calculation Period (or portion thereof) then most recently ended, plus any previously accrued Fees not paid on a prior Monthly Payment Date;
fifth, to the Administrative Agent’s Account for distribution to the Lenders, in reduction of Aggregate Principal until Aggregate Principal is reduced to $0; and
sixth, if the Aggregate Unpaids have been reduced to zero, to Borrower, free and clear of the Security Interest of the Administrative Agent for the benefit of the Lenders.
Promptly after its receipt of funds for the benefit of any Lender pursuant to this Section 2.2, the Administrative Agent shall promptly forward to each such Lender in the type of funds received such Lender’s ratable share thereof.
Section 2.3.    Payment Rescission. No payment of any of the Aggregate Unpaids shall be considered paid or applied hereunder to the extent that, at any time, all or any portion of such payment or application is rescinded by application of law or judicial authority or must otherwise be returned or refunded for any reason. Borrower shall remain obligated for the amount of any payment or application so rescinded, returned or refunded, and shall promptly pay to the Administrative Agent’s Account, for the benefit of the Lenders, the full amount thereof together with any Interest thereon from the date of any such rescission, return or refunding.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
Section 3.1.    Representations and Warranties of Borrower. Borrower hereby represents and warrants to the Administrative Agent and the Lenders as of the date hereof and as of the date of each Incremental Advance and Rollover Advance that:



(a)    Existence; Compliance with Law. Borrower (w) is duly organized, validly existing and in good standing under the laws of Delaware, (x) has all requisite power and authority, and the legal right, (i) to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged and (ii) execute, deliver and perform its obligations under the Transaction Documents to which it is a party, (y) is qualified to do business in, and is in good standing (or, if applicable in a foreign jurisdiction, enjoys the equivalent status under the laws of any jurisdiction of organization outside the United States) in, every jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, and (z) is in compliance with all Requirements of Law and its Contractual Obligations except, in each case (other than with respect to clause (x)(ii) or in connection with clause (w) above) to the extent that the failure to comply therewith could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(b)    Power; Authorization; Enforceable Obligations. The transactions governed by the Transaction Documents are within Borrower’s limited liability company powers and have been duly authorized by all necessary limited liability company and member action. As of (i) the Closing Date, each Transaction Document dated on the Closing Date and (ii) any date after the Closing Date on which the representations or warranties in this Section 3.1 are made, each Transaction Document dated on or prior to such date to which Borrower is a party, has, in each case, been duly executed and delivered by Borrower and, assuming due execution and delivery by all parties other than Borrower, constitutes a legal, valid and binding obligation of Borrower, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(c)    No Legal Bar. The execution, delivery and performance of this Agreement and the other Transaction Documents to which Borrower is a party, the granting of Liens pursuant hereto and thereto, the borrowings hereunder and the use of the proceeds thereof (i) will not violate any Requirement of Law or any Contractual Obligation of Borrower and (ii) will not result in, or require, the creation or imposition of any Lien on any of their respective properties or revenues pursuant to any Requirement of Law or any such Contractual Obligation (other than the Liens created by the Transaction Documents), except to the extent such violation or Lien could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(d)    Litigation. There are no actions, suits, investigations, criminal prosecutions, civil investigative demands, imposition of criminal or civil fines or penalties, claims, disputes or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of Borrower, threatened against or affecting Borrower (i) that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, or (ii) as of the Closing Date, that involve this Agreement.
(e)    No Default. Borrower is not in default under or with respect to any Contractual Obligation that would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Potential Amortization Event or Amortization Event has occurred and is continuing.
(f)    Ownership of Receivables Assets; Liens. Borrower has good title to the Receivables Assets free and clear of all Liens other than Permitted Liens, except where such failure to have good title free and clear of all Liens other than Permitted Liens could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.



(g)    Taxes. Borrower has filed or caused to be filed all Federal, material state and other Tax returns that are required to be filed and has paid all Taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other Taxes imposed on it or any of its property by any Governmental Authority to the extent such Taxes have become due and payable (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of Borrower); no Tax Lien has been filed, and, to the knowledge of Borrower, no claim is being asserted, with respect to any such Tax that could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(h)    Federal Regulations. No part of the proceeds of any Advance will be used (i) for “buying” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U as now and from time to time hereafter in effect for any purpose that violates the provisions of the Regulations of the Board or (ii) for any purpose that violates the provisions of the Regulations of the Board. No more than 25% of the assets of Borrower consist of “margin stock” as so defined. If requested by any Lender, Borrower will furnish to such Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation U.
(i)    Investment Company Act; Other Regulations. Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. Borrower (i) is not a “covered fund” under the Volcker Rule and (ii) is not required to register as, an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or any successor statute (the “’40 Act”). In determining that Borrower is not a covered fund, Borrower does not rely solely on the exemption from the definition of “investment company” set forth in Section 3(c)(1) and/or 3(c)(7) of the ’40 Act or is entitled to the benefit of the exclusion for loan securitizations in the Volcker Rule under 17 C.F.R. 75.10(c)(8).
(j)    Accuracy of Information, etc. No statement or information, other than projections, pro forma financial statements, forward-looking statements, estimates with respect to future performance and information of a general economic or industry specific nature, contained in this Agreement, any other Transaction Document or any other document, certificate, report or statement furnished by or on behalf of Borrower to the Administrative Agent or the Lenders for use in connection with the transactions contemplated by this Agreement or the other Transaction Documents, contained as of the date such statement, information, document, certificate or report was so furnished, any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained herein or therein, taken as a whole, not misleading in light of the circumstances under which such statements were made (giving effect to all supplements thereto). The projections, pro forma financial information, forward-looking statements and estimates with respect to future performance contained in the materials referenced above are based upon good faith estimates and assumptions believed by management of Borrower to be reasonable at the time made, it being recognized by the Administrative Agent and the Lenders that such financial information as it relates to future events is not to be viewed as fact and that actual results during the period or periods covered by such financial information may differ from the projected results set forth therein by a material amount.



(k)    Security Interest. This Agreement is effective to create in favor of the Administrative Agent, for the benefit of the Lenders, a valid security interest in the Collateral and proceeds thereof, and when, in the case of Collection Accounts, Control Agreements (or amendments thereto changing the name of the secured party to the Administrative Agent or assignments thereof in favor of the Administrative Agent) are entered into by the applicable party or parties and the Collection Bank, and in the case of the other Collateral, when financing statements and amendments in appropriate form are filed in the Office of the Secretary of State of Delaware, the Administrative Agent shall have a fully perfected Lien on, and security interest in, all right, title and interest of Borrower in such Collateral and the proceeds thereof, as security for the Aggregate Unpaids, in each case to the extent security interests in such Collateral can be perfected by the execution of Control Agreements or the filing of financing statements, as applicable, in each case prior and superior in right to any other Person.
(l)    Solvency. As of the Closing Date, Borrower is, and after giving effect to each Rollover Advance and Incremental Advance, Borrower will be, Solvent.
(m)    OFAC; Anti-Money Laundering; Patriot Act. Borrower is in compliance, in all material respects, with the Patriot Act. Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by Borrower and its directors, managers, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and, to the knowledge of Borrower, Borrower and its officers, employees and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. Borrower is not, nor, to the knowledge of Borrower, are any of its directors, managers, officers, employees or agents that will act in any capacity in connection with or benefit from the receivables credit facility established hereby, is a Sanctioned Person. No Advance, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(n)    Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, Borrower of this Agreement or any other Transaction Document (other than (i) as have already been obtained and are in full force and effect and (ii) filings to perfect security interests granted pursuant to the Transaction Documents).
(o)    Equity Interests and Ownership. TPNA owns, directly or indirectly, beneficially and of record, 100% of the outstanding Equity Interests of Borrower, and all such Equity Interests have been duly authorized and validly issued and are fully paid and non-assessable.
(p)    Use of Proceeds. Borrower will not use the proceeds of any Advance hereunder (i) for a purpose that violates (or may cause a violation of) Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time or (ii) to acquire any security in any transaction which is subject to Section 12, 13 or 14 of the Securities Exchange Act of 1934, as amended.
(q)    Jurisdiction of Formation; Location of Chief Executive Office and Records; Identification Numbers. The location of Borrower’s chief executive office and the locations of its Records are listed on Exhibit II (as such Exhibit may be updated by Borrower from time to time in writing delivered to the Administrative Agent). Borrower’s Federal Employer Identification Number and Organizational Identification Number are correctly set forth on Exhibit III (as such Exhibit may be updated by Borrower from time to time in writing delivered to the Administrative Agent).



(r)    Names. In the five (5) years prior to the Closing Date, Borrower has not used any legal names, trade names or assumed names other than the name in which it has executed this Agreement.
(s)    Collections. The applicable conditions and requirements set forth in Section 5.1(l) and Section 6.2 have been met and satisfied. The names and addresses of all Lock-Box Banks, together with the account numbers of the Collection Accounts of Borrower at each Lock-Box Bank and the post office box number of each Lock-Box, are listed on Exhibit III, as the same may be updated from time to time in writing delivered to the Administrative Agent by one of the Loan Parties. No Person, other than the Administrative Agent as contemplated by this Agreement, has a security interest in or control of any Collection Account, or the right to take control of any such Collection Account at a future time or upon the occurrence of a future event.
(t)    Compliance with Credit and Collection Policy. Borrower has complied in all material respects with the applicable Credit and Collection Policy with regard to each Receivable and the related Contract and has not made any change to such Credit and Collection Policy prohibited by Section 5.2(c) other than to the extent that such change(s) or failure(s) to so comply would not reasonably be expected, individually or in the aggregate, to cause a Material Adverse Effect.
(u)    Payments. With respect to each Receivable and the Related Security and Collections applicable thereto, Borrower has given reasonably equivalent value to TPNA in consideration therefor and such transfer was not made for or on account of an antecedent debt.
(v)    Eligible Receivables. Each Receivable included in the Borrowing Base on a Settlement Report as an Eligible Receivable was an Eligible Receivable as of the last day of the period covered by such Settlement Report.
(w)    No Overadvance. Borrower has determined that, immediately after giving effect to each Advance hereunder, no Overadvance exists.
Section 3.2.    Representations and Warranties of Master Servicer. Master Servicer hereby represents and warrants to the Administrative Agent and the Lenders as of the date hereof and as of the date of each Incremental Advance and each Rollover Advance as follows (capitalized terms used in this Section 3.2 and not otherwise defined in the Transaction Documents are used with the meanings attributed thereto in the TPX Credit Agreement):



(a)    Financial Condition. The audited consolidated balance sheets of Master Servicer as at December 31, 2020, and the related consolidated statements of income, stockholders’ equity and cash flows for the fiscal year ended on such date, reported on by and accompanied by an unqualified report from Ernst & Young LLP, present fairly, in all material respects, the consolidated financial condition of Master Servicer and its Subsidiaries as at such date, and the consolidated results of its operations and its consolidated cash flows for the fiscal year then ended. The unaudited consolidated balance sheet of Master Servicer and its Subsidiaries as at the last day of any subsequent fiscal quarter ended at least 45 days prior to the Closing Date (as defined in the TPX Credit Agreement) and the related unaudited consolidated statements of income and cash flows for the three-month periods ended on such dates, present fairly, in all material respects, the consolidated financial condition of Master Servicer and its Subsidiaries as at such dates, and the consolidated results of its operations and its consolidated cash flows for the three-month periods then ended (subject to normal year-end audit adjustments). All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein).
(b)    No Change. Since December 31, 2020, including after giving effect to the transactions contemplated by the Transaction Documents, there shall not have been any event or state of facts that has had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(c)    Existence; Compliance with Law. Each of the Loan Parties (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority, and the legal right, (A) to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged and (B) to execute, deliver and perform its obligations under the Transaction Documents to which it is a party, (iii) is qualified to do business in, and is in good standing in, every jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, and (iv) is in compliance with all Requirements of Law and its Contractual Obligations except, in each case (other than with respect to clause (ii)(B) or Borrower in connection with clause (i) above) to the extent that the failure to comply therewith could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(d)    Power; Authorization; Enforceable Obligations. The transactions contemplated by the Transaction Documents are within each Loan Party’s corporate or limited liability company powers, as applicable, and have been duly authorized by all necessary corporate or limited liability company, stockholder, member and shareholder action as of the date when the first Advance is made to Borrower hereunder. As of the Closing Date, each Transaction Document dated on or as of the Closing Date and (ii) any date after the Closing Date on which the representations or warranties in this Section 3.2(d) are made, each Transaction Document dated on or prior to such date, has, in each case, been duly executed and delivered by each Loan Party party thereto and, assuming due execution and delivery by all parties other than the Loan Parties, constitutes a legal, valid and binding obligation of each Loan Party party thereto, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.



(e)    No Legal Bar. The execution, delivery and performance of this Agreement and the other Transaction Documents, the borrowings hereunder, the granting of liens and the use of the proceeds of the Advances (i) will not violate any Requirement of Law or any Contractual Obligation of any Loan Party and (b) will not result in, or require, the creation or imposition of any Lien on any of their respective properties or revenues pursuant to any Requirement of Law or any such Contractual Obligation (other than the Liens created by the Transaction Documents), except to the extent such violation or Lien, could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(f)    Litigation. Other than as disclosed in the most recent 10-K filing of Master Servicer, there are no actions, suits, investigations, criminal prosecutions, civil investigative demands, imposition of criminal or civil fines or penalties, claims, disputes or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of Master Servicer, threatened against or affecting Master Servicer or any of its Restricted Subsidiaries (i) that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) as of the Closing Date, that involve this Agreement.
(g)    No Default. Neither Master Servicer nor any other Loan Party is in default under or with respect to any Contractual Obligation that would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Amortization Event or Potential Amortization Event has occurred and is continuing.
(h)    Taxes. Each Group Member has filed or caused to be filed all Federal, material state and other Tax returns that are required to be filed and has paid all Taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other Taxes imposed on it or any of its property by any Governmental Authority to the extent such Taxes have become due and payable (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the relevant Group Member); no Tax Lien has been filed, and, to the knowledge of Master Servicer, no claim is being asserted, with respect to any such Tax that could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(i)    Labor Matters. Except as, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect: (a) there are no strikes or other labor disputes against any Group Member pending or, to the knowledge of Master Servicer, threatened; (b) hours worked by and payment made to employees of each Group Member have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters; and (c) all payments due from any Group Member on account of employee health and welfare insurance have been paid or accrued as a liability on the books of the relevant Group Member to the extent required by GAAP.



(j)    ERISA.
(i) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state Laws and each Group Member and ERISA Affiliate is in material compliance with ERISA, the Internal Revenue Code and other United States federal or United States state Laws with respect to each Multiemployer Plan. Each Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the IRS (or an application for such a letter is currently pending before the IRS with respect thereto) or is maintained under a prototype document that has received a favorable opinion letter from the IRS and, to the best knowledge of the Group Members, nothing has occurred that would prevent, or cause the loss of, such qualification. Each Group Member and ERISA Affiliate have made all required contributions that are due and owing to each Plan subject to Section 412 of the Internal Revenue Code or Section 303 of ERISA and to each Multiemployer Plan under Section 412 of the Internal Revenue Code or Section 304 of ERISA, and no application for a waiver of the minimum funding standard pursuant to Section 412 of the Internal Revenue Code or Section 302 of ERISA has been made with respect to any Plan.
(ii) There are no pending or, to the best knowledge of the Group Members or ERISA Affiliates, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or would reasonably be expected to result in a Material Adverse Effect.
(iii) (A) No ERISA Event has occurred or is reasonably expected to occur, (B) no Pension Plan has any Unfunded Pension Liability, (C) no Group Member and ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred that, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan, and (D) no Group Member and ERISA Affiliate has engaged in a transaction involving any Pension Plan or Multiemployer Plan that would reasonably be expected to be subject to Sections 4069 or 4212(c) of ERISA, in each case, as to clauses (A), (B), (C) or (D), that has resulted or would reasonably be expected to result in a Material Adverse Effect.
(iv)     All Foreign Plans are maintained in compliance with applicable law, except as would not reasonably be expected to have a Material Adverse Effect.
(k)    Investment Company Act; Other Regulations. No Loan Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(l)    No Burdensome Restrictions. No Loan Party is a party to any contract or agreement the performance of which could reasonably be expected to have a Material Adverse Effect. No Loan Party has agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any of the Receivables Assets to be subject to a Lien other than a Permitted Lien.



(m)    Accuracy of Information, etc. No statement or information, other than projections, pro forma financial statements, forward-looking statements, estimates with respect to future performance and information of a general economic or industry specific nature, contained in this Agreement, any other Transaction Document, the Confidential Information Memorandum or any other document, certificate or statement furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender for use in connection with the transactions contemplated by this Agreement or the other Transaction Documents, contained as of the date such statement, information, document or certificate was so furnished , any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained herein or therein, taken as a whole, not misleading in light of the circumstances under which such statements were made (giving effect to all supplements thereto). The projections, pro forma financial information, forward-looking statements and estimates with respect to future performance contained in the materials referenced above are based upon good faith estimates and assumptions believed by management of Master Servicer to be reasonable at the time made, it being recognized by the Administrative Agent and the Lenders that such financial information as it relates to future events is not to be viewed as fact and that actual results during the period or periods covered by such financial information may differ from the projected results set forth therein by a material amount.
(n)    OFAC; Anti-Money Laundering; Patriot Act. (i) Each Group Member is in compliance, in all material respects, with the Patriot Act.
(ii)    Master Servicer has implemented and maintains in effect policies and procedures designed to ensure compliance by Master Servicer, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and Master Servicer, its Subsidiaries and their respective officers and employees and to the knowledge of Master Servicer its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) Master Servicer, any Subsidiary or to the knowledge of Master Servicer or such Subsidiary any of their respective directors, officers or employees, or (b) to the knowledge of Master Servicer, any agent of Master Servicer or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Advance, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(o)    Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Transaction Document (other than (i) as have already been obtained and are in full force and effect and (ii) filings to perfect security interests granted pursuant to the Transaction Documents).
ARTICLE IV.
CONDITIONS PRECEDENT
Section 4.1.    Conditions to the Amendment and Restatement Effective Date. The conditions to the effectiveness of the amendment and restatement of the Existing CSA in the form of this Agreement are set forth in Section 7 of Omnibus Amendment No. 2.



Section 4.2.    Conditions Precedent to Each Advance after the Amendment and Restatement Effective Date. Each Advance shall be subject to the further conditions precedent that (a) Master Servicer shall have delivered to the Administrative Agent on or prior to the date of such Advance, in form satisfactory to the Administrative Agent, all Settlement Reports as and when due under Section 6.6; (b) the Facility Termination Date shall not have occurred, (c) the Administrative Agent shall have received such other opinions or documents as it may reasonably request; provided, however, that the Administrative Agent will not request any additional opinions or documents unless there has been an adverse change in Law which could reasonably be expected to have a Material Adverse Effect, and (d) on the applicable Borrowing Date, the following statements shall be true (and acceptance of the proceeds of such Advance shall be deemed a representation and warranty by Borrower that such statements are then true):
(i)    The representations and warranties set forth in Article III are true and correct in all respects on and as of such Borrowing Date as though made on and as of such date (except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all respects as of such earlier date), other than, in each case, any breach of any such representation or warranty that could not reasonably be expected to have an Originator Material Adverse Effect or a Material Adverse Effect;
(ii)    No event has occurred and is continuing, or would result from such Advance, that will constitute an Amortization Event or a Potential Amortization Event; and
(iii)    No Overadvance exists or will result from such Advance.
It is expressly understood that each Rollover Advance shall, unless otherwise directed by the Administrative Agent, occur automatically on each day that Master Servicer shall receive any Collections without the requirement that any further action be taken on the part of any Person and notwithstanding the failure of Borrower to satisfy any of the foregoing conditions precedent in respect of such Rollover Advance. The failure of Borrower to satisfy any of the foregoing conditions precedent in respect of any Rollover Advance shall give rise to a right of the Administrative Agent to rescind the related Rollover Advance and direct Borrower to pay to the Administrative Agent, for the benefit of the Lenders, an amount equal to the Collections prior to the Amortization Date that were applied to the affected Rollover Advance.
ARTICLE V.
COVENANTS
Section 5.1.    Affirmative Covenants of Borrower and Master Servicer. Until the date on which the Aggregate Unpaids have been paid in full (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted) and the Commitment has terminated or expire:
(a)    Financial Statements; Projections; Etc. Borrower or Master Servicer will furnish to the Lenders:



(i)    On the date specified in the TPX Credit Agreement, concurrently with the delivery of any annual financial statement of TPX thereunder, (A) a copy of same, together with a copy of any certificate or report delivered in connection therewith, and (B) unaudited annual financial statements of Borrower for the same year; and
(ii)    On the date specified in the TPX Credit Agreement, concurrently with the delivery of any quarterly financial statement of TPX thereunder, a copy of same, together with a copy of any compliance certificate (on which certificate the Administrative Agent and the Lenders shall be entitled to rely with the same force and effect as if it were addressed directly to it) or report delivered in connection therewith.
(iii)    As soon as available, and in any event no later than 60 days after the end of each fiscal year of TPX, a detailed consolidated budget for the following fiscal year (including a projected consolidated balance sheet of TPX and its Subsidiaries as of the end of the following fiscal year, the related consolidated statements of projected cash flow and projected income and a description of the underlying assumptions applicable thereto), and, as soon as available, significant revisions, if any, of such budget and projections with respect to such fiscal year (collectively, the “Projections”), which Projections shall in each case be accompanied by a certificate of a Responsible Officer stating that such Projections are based on estimates, information and assumptions determined reasonable at the time;
(iv)    Promptly after any request by any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of TPX by independent accountants in connection with the accounts or books of TPX or any Subsidiary, or any audit of any of them;
(v)    Within five (5) days after the same are sent, copies of all financial statements and reports that TPX sends to the holders of any class of its debt securities or public equity securities and, within five days after the same are filed, copies of all financial statements and reports that TPX may make to, or file with, the SEC or any national securities exchange;
(vi)    Promptly following receipt thereof, copies of any documents described in Section 101(k) or 101(l) of ERISA that any Group Member or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the relevant Group Members or ERISA Affiliates have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plans, then, upon reasonable request of the Administrative Agent, such Group Member or the ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and Master Servicer shall provide copies of such documents and notices to the Administrative Agent promptly after receipt thereof; and
(vii)    Promptly, such additional information regarding the business, financial or corporate affairs of any Loan Party or any Subsidiary of a Loan Party, or compliance with the terms of the Transaction Documents, as the Administrative Agent may from time to time reasonably request.



All such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied (except as approved by such accountants or officer, as the case may be) consistently throughout the periods reflected therein and with prior periods. The Administrative Agent and the Lenders shall be entitled to rely on such financial statements and certificates with the same force and effect as if it were a direct party to the TPX Credit Agreement. Financial statements and any related certificates or reports required to be delivered pursuant to Section 5.1(a) or Section 5.1(b)(vi) shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall be available on the website of the SEC at http://www.sec.gov or on TPX’s website at http://www.tempursealy.com, or if made available to the Administrative Agent’s personnel in the Trade Receivables Securitization Group through an internet website in connection with the TPX Credit Agreement. Information required to be delivered pursuant to this Section may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent.
(b)    Notices. Borrower or Master Servicer on Borrower’s behalf will notify the Administrative Agent in writing signed by a Responsible Person of Borrower of any of the following promptly upon learning of the occurrence thereof, describing the same and, if applicable, the steps being taken with respect thereto:
(i)    Amortization Events or Potential Amortization Events. The occurrence of each Amortization Event and each Potential Amortization Event.
(ii)    Material Adverse Effect. The occurrence of any event or condition that would be reasonably expected to have a Material Adverse Effect.
(iii)    Defaults Under Other Agreements. That any Person has given a notice to any of the Loan Parties that a default or an event of default has occurred and is continuing under any financing arrangement relating to Material Indebtedness pursuant to which any Loan Party is a debtor or an obligor (excluding the financing arrangement evidenced hereby).
(iv)    Termination Date. The occurrence of the “Termination Date” under the RSCA or the RSA.
(v)    Change of Independent Director. At least 10 days prior to any proposed change of the sole (or, as applicable, the sole remaining) Independent Director for any reason other than death, incapacity or resignation of the incumbent director, notice of such proposed change together with a certificate of Borrower certifying that the proposed replacement director satisfies the criteria set forth in the definition of “Independent Director.” As soon as reasonably practicable but in any event within 10 days after any Loan Party receives notice of the death, incapacity or resignation of the sole (or, as applicable, the sole remaining) incumbent Independent Director, notice of the proposed replacement director together with a certificate of Borrower certifying that the proposed replacement manager satisfies the criteria set forth in the definition of “Independent Director.”
(vi)    Delivery of a QMA Notice. Within one Business Day after delivery of a “QMA Notice” under and as defined in the TPX Credit Agreement, notice of its delivery together with a copy thereof.



(c)    Other Information. Promptly, from time to time, Borrower or Master Servicer shall provide such other information, documents, records or reports, in case, relating to the Receivables as any Lender may from time to time reasonably request in order to protect the interests of the Administrative Agent and the Lenders under or as contemplated by this Agreement.
(d)    Audits. Each of the Loan Parties will, from time to time during regular business hours (and without undue interference in such Loan Party’s business, taking into consideration seasonal accounting and reporting demands of such Loan Party) as requested by any Lender upon at least 30 calendar days’ advance notice, or, if an Amortization Event or Potential Amortization Event exists, upon at least five (5) Business Days’ advance notice, to such Loan Party, permit the Administrative Agent, or its agents or representatives, who may be accompanied by any of the Lenders (i) to examine and make copies of and abstracts from all Records in the possession or under the control of such Loan Party relating to the Receivables and the Related Security (including the related invoices but excluding, for all purposes of this clause (d), all other related Contracts unless there is a Dispute, in which case, upon request by any Lender, in addition to invoices, the Loan Parties shall be required to provide the Administrative Agent with relevant excerpts and definitions from such other Contracts to assist the Administrative Agent and the Lenders in understanding the source of the Dispute), and (ii) to visit the offices and properties of such Loan Party for the purpose of examining such materials described in clause (i) above, and to discuss matters relating to such Loan Party’s financial condition or the Receivables and the Related Security or such Loan Party’s performance under any of the Transaction Documents and, in each case, with any of the officers or employees of such Loan Party having knowledge of such matters (each such examination, a “Review”); provided that, so long as no Facility Termination Event or Amortization Event has occurred and is continuing, (A) there shall be no more than one (1) such Review in any Fiscal Year, and (B) Borrower shall be responsible for the costs and expenses of only one (1) such Review.
(e)    Keeping Records. Master Servicer will (or will cause the applicable Originator to) maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate Records evidencing its Receivables in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information, in each case, reasonably necessary or advisable for the collection of all Receivables in its good faith judgment (including, without limitation, records adequate to permit the prompt identification of each new Receivable and all Collections of and adjustments to each existing Receivable). Master Servicer will give the Administrative Agent prompt notice of any material change in the administrative and operating procedures relating to the Receivables referred to in the previous sentence unless such change would not reasonably be expected to cause a Material Adverse Effect. After the occurrence and during the continuance of an Amortization Date described in clause (b) of the definition of “Amortization Date”, upon the request of the Administrative Agent or the Required Lenders, Master Servicer will (or will cause the Originators to) deliver to the Administrative Agent all Contracts that constitute tangible chattel paper, a promissory note or other instrument, a document of title or a certificated security (including, without limitation, all multiple originals of any such Contract) relating to the Receivables, unless confidentiality provisions in such Contracts prohibit such delivery, in which case such Loan Party shall request a waiver of such provisions from the related Obligor in order to make such delivery or shall provide relevant excerpts and definitions from such Contracts when requested by the Administrative Agent in attempting to resolve a Dispute.



(f)    Separateness. Each of Borrower and Master Servicer acknowledges that each of the Administrative Agent and the Lenders is entering into the transactions contemplated by the Transaction Documents in reliance upon Borrower’s identity as a legal entity that is separate from each of the Originators and their respective Related Parties. Therefore, from and after the date of execution and delivery of this Agreement, Borrower shall take all reasonable steps, including, without limitation, all steps that the Administrative Agent or any Lender may from time to time reasonably request, to maintain Borrower’s identity as a separate legal entity and to make it manifest to third parties that Borrower is an entity with assets and liabilities distinct from those of its Related Parties and not just a division thereof. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, except as herein specifically otherwise provided, Borrower will:
(i)    Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of Borrower’s Organizational Documents and each other instrument or agreement necessary or appropriate to properly administer its Organizational Documents and permit and effectuate the transactions contemplated hereby and thereby;
(ii)    Maintain its own separate books and records and its own bank accounts;
(iii)    Maintain an arms’ length relationship with its Affiliates and its sole member;
(iv)    Have a board of directors which is not identical to that of its member or any other Related Party, including, at all times, at least one Independent Director;
(v)    Pay its own operating expenses and other liabilities out of its own funds, and allocate fairly and reasonably, to the extent practical on the basis of actual use or the value of services rendered, any overhead for shared office space or other overhead expenses;
(vi)    Maintain separate financial statements (it being understood that Borrower will be consolidated for financial reporting purposes with TPX);
(vii)    File its own tax returns, if any, as may be required under applicable law, to the extent (A) not part of a consolidated group filing a consolidated return or returns or (B) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(viii)    Conduct its affairs in its own name separately from those of any other Person and strictly complying with all organizational formalities to maintain its separate existence;
(ix)    Act solely in its own limited liability company name and through its own authorized managers, directors, members, officers and agents, except as explicitly permitted by Borrower’s Organizational Documents and the Transaction Documents;



(x)    At all times use its own stationery, separate from those of any other Person;
(xi)    Not hold out its credit or assets as being available to satisfy the obligations of others;
(xii)    Except as contemplated by Borrower’s Organizational Documents and the Transaction Documents, maintain all of its assets in its own name and not commingle its assets with those of any other Person;
(xiii)    Observe all Delaware limited liability company formalities, including maintaining meeting minutes or records of meetings and acting on behalf of itself only pursuant to due authorization, required hereby and by its Certificate of Formation;
(xiv)    Maintain adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations and in any event, Borrower shall maintain its equity in an amount not less than the Required Capital Amount;
(xv)    Not acquire any securities of its member;
(xvi)    Hold itself out to the public and all other Persons as a legal entity separate and distinct from its member and any other Person and correct any known misunderstanding regarding its separate identity; and
(xvii)    Cause the managers, authorized persons, agents and other representatives of Borrower to act at all times with respect to Borrower consistently and in furtherance of the foregoing and in the best interests of Borrower.
Failure of Borrower, its sole member, its manager or its board of directors, to comply with any of the foregoing covenants or any other covenants contained in this Agreement, shall not affect the status of Borrower as a separate legal entity or the limited liability of its member or managers.
(g)    Compliance with Credit and Collection Policy. Each Loan Party will timely and fully comply with the Credit and Collection Policy in regard to each such Receivable and the related invoice or other Contract unless failure to so comply would not reasonably be expected to cause a Material Adverse Effect.
(h)    Existence. Each of Borrower and Master Servicer will at all times preserve and keep in full force and effect its existence and all rights and franchises, licenses and permits material to its business except to the extent failing to so preserve and keep such rights, franchises, licenses and permits would not reasonably be expected to cause a Material Adverse Effect.
(i)    Compliance with Laws. Each of the Loan Parties will comply with the Requirements of Laws, except in such instances in which the failure to comply therewith would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.



(j)    Performance and Enforcement of the Sale Agreements and the Performance Undertaking. Borrower will, and will require the applicable Originator to, perform each of its respective obligations and undertakings under and pursuant to the Sale Agreements. Borrower will acquire Receivables under the RSCA in compliance with the terms thereof. Borrower will take all reasonable actions to perfect and enforce its rights and interests (and the rights and interests of the Administrative Agent as assignee of Borrower) under the Sale Agreements and the Performance Undertaking as the Administrative Agent may from time to time reasonably request, including, without limitation, making claims to which it may be entitled under any indemnity, reimbursement or similar provision contained in the RSCA provided that (i) unless a Facility Termination Event exists and is continuing hereunder and the Administrative Agent is exercising rights and remedies hereunder, Borrower shall not be required to take any action to document, grant or perfect any Lien under or pursuant to the laws of any Foreign Jurisdiction.
(k)    Ownership of the Receivables. Borrower and Master Servicer will (or will require each Originator to) take all necessary action to (i) vest legal and equitable title to the Receivables, the Related Security and the Collections irrevocably in Borrower, free and clear of any Adverse Claims other than the Permitted Liens and Adverse Claims in favor of the Administrative Agent for the benefit of the Lenders (including, without limitation, the filing of all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect Borrower’s interest in such Receivables, Related Security and Collections and such other action to perfect, protect or more fully evidence the interest of Borrower therein as the Administrative Agent may reasonably request), and (ii) establish and maintain, in favor of the Administrative Agent for the benefit of the Lenders, a valid and perfected security interest in the Collateral (in which a security interests can be perfected by the filing of a financing statement) to the full extent contemplated herein and subject to the Permitted Liens, free and clear of any Adverse Claims other than the Permitted Liens (including, without limitation, the filing of all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the Administrative Agent’s interest in the Collateral and such other action to perfect, protect or more fully evidence the interest of the Administrative Agent as the Administrative Agent may reasonably request), provided that, in the case of subclauses (i) and (ii) of this clause (k), unless a Facility Termination Event exists and is continuing hereunder and the Administrative Agent is exercising rights and remedies hereunder, Borrower and Master Servicer shall not be required (and shall not be required to require any Originator) to take any action to document, grant or perfect any Lien under or pursuant to the laws of any Foreign Jurisdiction.
(l)    Collections. Each of Borrower and Master Servicer will, or will direct the applicable Originator to, require all Collections and proceeds of the Receivables and Related Security to be deposited into a Collection Account or into a Lock-Box that clears through a Collection Account on a daily basis. Notwithstanding any other provisions set forth herein, in the event any payments relating to Receivables are remitted directly to Borrower, Master Servicer or an Originator, Borrower and Master Servicer will, or will direct the applicable Originator to, shall hold such Collections in trust and remit (or will cause all such payments to be remitted) directly to a Collection Account or Lock-Box that meets the requirements in the preceding sentence within two (2) Business Days following a Responsible Person of Borrower, Master Servicer or an Originator, as applicable, obtaining actual knowledge of the receipt thereof. Each of Borrower and Master Servicer shall cause each Collection Account to be subject to a Control Agreement that is in full force and effect.



(m)    Taxes. Such Loan Party will file all federal and all other material tax returns and reports required by law to be filed by it and will promptly pay all taxes and governmental charges at any time owing (exclusive of Excluded Taxes), provided that (i) no such tax or claim need be paid if it is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as (x) adequate reserves or other appropriate provision as shall be required in conformity with GAAP, shall have been made therefor and (y) in the case of a tax or claim which has or may become a Lien against any of the Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the Collateral to satisfy such tax or claim or (ii) failure to make such payment would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(n)    Insurance. Master Servicer will maintain in effect, or cause to be maintained in effect, at Master Servicer’s own expense, such casualty and liability insurance as Master Servicer shall deem appropriate in its good faith business judgment.
(o)    Payment to Originators. With respect to any Receivable purchased by Borrower under the RSCA, such purchase shall be affected under, and in compliance with the terms of, the RSCA, including, without limitation, the terms relating to the amount and timing of payments to be made to TPNA in respect of the purchase price for such Receivable.
(p)    Payment of Obligations. Each of Borrower and Master Servicer will pay and discharge, as the same shall become due and payable (beyond any period of grace or cure, if applicable), all its obligations and liabilities, including, (i) material Tax liabilities before the same shall become delinquent or in default, except where (A) the validity or amount thereof is being contested in good faith by appropriate proceedings and (B) TPX or Borrower has set aside on its books adequate reserves with respect thereto in accordance with GAAP, (ii) all lawful claims in excess of $1,000,000 that, if unpaid, would by law become a Lien (other than a Permitted Lien) upon any Receivables; and (iii) all Material Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness.
(q)    Anti-Corruption Laws; Sanctions. Master Servicer shall maintain in effect and enforce policies and procedures designed to ensure compliance by Master Servicer, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
Section 5.2.    Negative Covenants of Loan Parties. Until the date on which the Aggregate Unpaids have been paid in full (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted) and the Commitment has terminated or expired:
(a)    Name Change, Offices and Records. Borrower will not change its name, identity or legal form unless it shall have: (i) given the Administrative Agent written notice thereof within thirty (30) days after the occurrence thereof and (ii) delivered to the Administrative Agent all financing statements, instruments and other documents reasonably requested by the Administrative Agent in connection with such change; provided that unless a Facility Termination Event exists and is continuing hereunder and the Administrative Agent is exercising rights and remedies hereunder, Borrower shall not be required to take any action to document, grant or perfect any Lien under or pursuant to the laws of any Foreign Jurisdiction. Borrower shall not relocate its chief executive office or any office where Records are kept unless Borrower gives the Administrative Agent notice thereof within fifteen (15) days after each such relocation.



(b)    Change in Payment Instructions to Obligors. Except as may be required by the Administrative Agent pursuant to Section 6.2(b), such Loan Party will not add or terminate any bank as a Collection Bank, or make any change in the instructions to Obligors regarding payments to be made to a Collection Accounts that is subject to a Control Agreement at all times or to a Lock-Box that clears through such a Collection Account unless the Administrative Agent shall have received, (i) at least five (5) Business Days before the proposed effective date therefor, written notice of such addition, termination or change and (ii) with respect to the addition of a Collection Account, an executed Control Agreement; provided, however, that Master Servicer may make changes in instructions to Obligors regarding payments if such new instructions require such Obligor to make payments to an existing Lock-Box or Collection Account that satisfies the conditions of this Section 5.2(b).
(c)    Modifications to Contracts and Credit and Collection Policy. No Loan Party will, and no Loan Party will permit any Originator to, make any change to the Credit and Collection Policy that could reasonably be expected to materially and adversely affect the collectability of any material portion of the Receivables (taken as a whole) or materially decrease the credit quality of any material portion of the newly created Receivables (taken as a whole) unless, in each case, required to do so by applicable law, rule and/or regulation provided that Loan Parties agree to provide the Administrative Agent with written notice within thirty (30) days after making a change to the Credit and Collection Policy as a result of a Requirement of Law (to the extent that such change would not otherwise be permitted hereunder other than on account of such Requirement of Law). Except as provided in Section 6.2(d), no Loan Party will, or will permit any Originator to, extend, amend or otherwise modify the terms of any Receivable or any terms of any Contract related to such Receivable in any material adverse respect other than in accordance with the Credit and Collection Policy.
(d)    Sales, Liens. Other than the ownership and security interests contemplated by the Transaction Documents and the Permitted Liens, Borrower will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, or create or suffer to exist any Adverse Claim upon (including, without limitation, the filing of any financing statement) or with respect to, any Receivable, Related Security or Collections, or upon or with respect to any Contract under which any Receivable arises, or any Lock-Box or Collection Account, or assign any right to receive income with respect thereto (other than, in each case, the creation of the interests therein in favor of the Administrative Agent for the benefit of the Lenders provided for herein), and, other than in regards to Permitted Liens, Borrower will defend the right, title and interests of the Administrative Agent and the Lenders in, to and under any of the foregoing property, against all claims of third parties claiming through or under Borrower or any Originator.
(e)    Termination of Sale Agreements. Except as otherwise permitted under Section 7.1(m) or occurring automatically under Section 7.1(e) hereof, Borrower will not terminate either of the Sale Agreements or send any termination notice to any Material Originator in respect thereof, without the prior written consent of the Lenders. Borrower will not agree to amend or waive any provision of either of the Sale Agreements without the prior written consent of the Administrative Agent (at the direction of the Required Lenders).
(f)    Restricted Junior Payments. Borrower will not make any Restricted Junior Payment: (i) after the Amortization Date, or (ii) after the occurrence and during the continuance of a Potential Facility Termination Event or Facility Termination Event, in each of the foregoing cases, of the type described in Section 7.1(a), and written direction by the Administrative Agent to Borrower blocking any additional Restricted Payments while such Facility Termination Event or Potential Facility Termination Event is continuing.



(g)    Borrower Indebtedness. Except as contemplated by the Transaction Documents, Borrower will not incur or permit to exist any Indebtedness or liability on account of deposits except: (i) the Aggregate Unpaids, (ii) other current accounts payable arising in the ordinary course of business and not overdue, (iii) Indebtedness incurred in connection with the settlement of an Adverse Proceeding to the extent that such Adverse Proceeding has not triggered a Facility Termination Event, and (iv) Indebtedness (A) in respect of netting services, overdraft protections and otherwise in connection with the Collection Accounts or (B) arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services (including automated clearinghouse (ACH) transfers) in the ordinary course of business.
(h)    Prohibition on Additional Negative Pledges. From and after the date hereof, Borrower will not enter into or assume any new agreement (other than this Agreement and the other Transaction Documents) (i) prohibiting the creation or assumption of any Adverse Claim upon the Collateral except (x) as contemplated by the Transaction Documents, or (y) to the extent that such prohibition permits the Adverse Claims on the Collateral contemplated by the Transaction Documents, or (ii) otherwise prohibiting or restricting any transaction contemplated hereby or by the other Transaction Documents.
ARTICLE VI.
ADMINISTRATION AND COLLECTION
Section 6.1.    Designation of Master Servicer.
(a)    The servicing, administration and collection of the Receivables shall be conducted by such Person (the “Master Servicer”) so designated from time to time in accordance with this Section 6.1. TPX is hereby designated as, and hereby agrees to perform the duties and obligations of, Master Servicer pursuant to the terms of this Agreement. At any time after the occurrence and during the continuance of a Facility Termination Event, the Required Lenders may designate as Master Servicer any Person to succeed TPX or any successor Servicer.
(b)    TPX, in its capacity as Master Servicer, may delegate to the Originators, as sub-Servicers of Master Servicer, its duties and responsibilities as Master Servicer hereunder in respect of the Receivables originated by such Originators. Without the prior written consent of the Required Lenders, Master Servicer shall not be permitted to delegate any of its duties or responsibilities as Master Servicer to any Person other than (i) the Originators, and (ii) with respect to certain Charged-Off Receivables, outside collection agencies or collection attorneys in accordance with its customary practices. Borrower shall not be permitted to further delegate to any other Person any of the duties or responsibilities of Master Servicer delegated to it by TPX. If at any time following the occurrence of a Facility Termination Event, the Required Lenders shall designate as Master Servicer any Person other than TPX, all duties and responsibilities theretofore delegated by TPX to Borrower or any Originator may, at the discretion of the Required Lenders, be terminated forthwith on notice given by the Required Lenders to TPX and to Borrower.



(c)    Notwithstanding the foregoing subsection (b), (i) Master Servicer shall be and remain primarily liable to the Administrative Agent and the Lenders for the full and prompt performance of all duties and responsibilities of Master Servicer hereunder and (ii) the Administrative Agent and the Lenders shall be entitled to deal exclusively with Master Servicer in matters relating to the discharge by Master Servicer of its duties and responsibilities hereunder. The Administrative Agent and the Lenders shall not be required to give notice, demand or other communication to any Person other than Master Servicer in order for communication to Master Servicer and its sub-Servicer or other delegate with respect thereto to be accomplished. Master Servicer, at all times that it is Master Servicer, shall be responsible for providing any sub-Servicer or other delegate of Master Servicer with any notice given to Master Servicer under this Agreement.
Section 6.2.    Duties of Master Servicer.
(a)    Master Servicer shall take or cause to be taken all such actions as may be necessary or advisable to collect each Receivable from time to time, in Master Servicer’s good faith business judgment, all in accordance with applicable laws, rules and regulations, with reasonable care and diligence, and in accordance with the Credit and Collection Policy of each respective Originator.
(b)    Master Servicer will instruct all Obligors to pay all Collections directly to a Collection Account or to a Lock-Box that clears through such a Collection Account. Borrower shall cause a Control Agreement in form reasonably acceptable to the Administrative Agent to be in effect with respect to each Collection Account at all times. In the case of any remittances received in a Collection Account that shall have been identified, to the satisfaction of Master Servicer, to not constitute Collections or other proceeds of the Collateral, Master Servicer shall promptly remit such items to the Person identified to it as being the owner of such remittances.
(c)    Master Servicer (and from and after the Dominion Date, the Administrative Agent) shall administer the Collections in accordance with the procedures described herein and in Article II. At any time while Collections are received by Master Servicer, whether through a Lock-Box, a Collection Account or otherwise, and a Responsible Person of Master Servicer has actual knowledge thereof, Master Servicer shall segregate and hold in trust for the account of Borrower and the Administrative Agent their respective shares of such Collections prior to the remittance thereof in accordance with Article II.
(d)    Master Servicer may, in accordance with the Credit and Collection Policy, extend the maturity of any Receivable or adjust the Outstanding Balance of any Receivable as Master Servicer determines to be appropriate to maximize Collections thereof; provided, however, that such extension or adjustment shall not alter the status of such Receivable as a Delinquent Receivable, Defaulted Receivable or Charged-Off Receivable or limit the rights of the Administrative Agent for the benefit of the Lenders under this Agreement. Notwithstanding anything to the contrary contained herein, following the occurrence and during continuation of a Facility Termination Event, the Administrative Agent shall have the absolute and unlimited right to direct Master Servicer to commence or settle any legal action with respect to any Receivable or to foreclose upon or repossess any Related Security.



(e)    Master Servicer shall hold in trust for Borrower, the Administrative Agent and the Lenders all Records in its possession that (i) evidence or relate to the Receivables, the related Contracts and Related Security or (ii) are otherwise necessary or desirable to collect the Receivables and shall, following the occurrence of a Facility Termination Event that is continuing, as soon as practicable upon demand of the Administrative Agent while the Administrative Agent is exercising rights and remedies hereunder, make available to the Administrative Agent all such Records. Master Servicer shall, from time to time at the reasonable request of the Administrative Agent after the occurrence and during the continuance of such Facility Termination Event, furnish to the Administrative Agent (promptly after any such request) a calculation of the amounts set aside for the Administrative Agent pursuant to Article II.
(f)    Any payment by an Obligor into a Collection Account (whether directly or via a Lock-Box) on account of a Receivable shall, if a Responsible Person of the applicable Originator (in the case of a payment to an Originator) or Borrower has actual knowledge thereof, except as otherwise specified by such Obligor or otherwise required by Contract or law and unless otherwise instructed by the Administrative Agent, be applied as a Collection of Receivables of such Obligor starting with the oldest such Receivable to the extent of any amounts then due and payable thereunder.
Section 6.3.    Collection Accounts. Subject to the terms of the applicable Control Agreement, Borrower shall grant to the secured party (i.e., Wells Fargo and from and after May 6, 2021, Wells Fargo in its capacity as the Administrative Agent) “control” (within the meaning of the UCC) over each Collection Account. Borrower hereby authorizes the Administrative Agent, and agrees that such secured party shall be entitled (a) after the occurrence of the Dominion Date, to endorse Borrower’s name on checks and other instruments representing Collections and take such action as shall be necessary or desirable to cause all cash, checks and other instruments constituting Collections of Receivables to come into the possession of the Administrative Agent rather than Borrower, and (b) after the occurrence of a Facility Termination Event that is continuing, to enforce the Receivables, the related Contracts and the Related Security.
Section 6.4.    Collection Notices. The Administrative Agent is authorized to deliver to the Lock-Box Banks the Collection Notices with respect to the Collection Accounts upon the occurrence and during the continuance of an Amortization Event or Potential Facility Termination Event under Section 7.1(a). Subject to the terms of the applicable Control Agreement, Borrower has transferred to the secured party (i.e., Wells Fargo or from and after May 6, 2021, Wells Fargo in its capacity as the Administrative Agent), exclusive “control” over the Sweep Account and each future Collection Account; provided that Borrower shall retain access to the Collection Accounts prior to delivery of the Collection Notices. In case any authorized signatory of Borrower whose signature appears on a Control Agreement shall cease to have such authority before the delivery of such notice, such Collection Notice shall nevertheless be valid as if such authority had remained in force.
Section 6.5.    Responsibilities of Borrower. Anything herein to the contrary notwithstanding, the exercise by the Administrative Agent of its rights hereunder shall not release Master Servicer, any Originator or Borrower from any of their duties or obligations with respect to any Receivables or under the related Contracts, as applicable. The Administrative Agent and the Lenders shall have no obligation or liability with respect to any Receivables or related Contracts, nor shall any of them be obligated to perform the obligations of Borrower or the applicable Originator.



Section 6.6.    Reports.
(a)    On each Interim Reporting Date (if any), Master Servicer shall prepare and deliver via Email not later than 11:00 a.m. (New York City time) to the Lenders an Interim Report.
(b)    On each Monthly Reporting Date, Master Servicer shall prepare and deliver via Email not later than 11:00 a.m. (New York City time) to the Lenders, a Monthly Report for the calendar month then most recently ended.
(c)    At such times as any Lender shall reasonably request, Master Servicer shall prepare and deliver via Email not later than 11:00 a.m. (New York City time) five (5) Business Days after such request a listing by Obligor of all Receivables together with an aging of such Receivables provided that (i) Master Servicer shall not be required to deliver such report to the Lenders more than once per calendar year and (ii) such report shall be calculated as of the end of the Calculation Period preceding the Calculation Period during which such request was made.
Section 6.7.    Servicing Fees. In consideration of TPX’s agreement to act as the initial Master Servicer hereunder, so long as TPX shall continue to perform as Master Servicer hereunder, TPX shall be paid a fee (the “Servicing Fee”) on each Monthly Payment Date, in arrears for the immediately preceding Calculation Period, equal to 1.00% per annum of the average aggregate Outstanding Balance of all Receivables during such period. At any time while Master Servicer is not an Affiliate of Borrower, the Servicing Fee shall be computed at such rate per annum as the Administrative Agent, Borrower and the substitute Master Servicer may mutually agree.
ARTICLE VII.
FACILITY TERMINATION EVENTS
Section 7.1.    Facility Termination Events. The occurrence of any one or more of the following events shall constitute a “Facility Termination Event”:
(a)    Failure by any Loan Party to pay or deposit (i) when due any Principal, whether at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; or (ii) any Interest on any Loan, any Fee or any other Aggregate Unpaid (other than Principal) within five (5) Business Days after the date due therefor.
(b)    Any Loan Party shall fail to perform or observe any covenant contained in any provision of Section 5.2, Section 6.2(c) or Section 6.6.
(c)    Any Loan Party shall fail to perform or observe any other covenant, agreement or other obligation under this Agreement (other than as referred to in another paragraph of this Section 7.1) or any other Transaction Document to which it is a party and such failure shall continue unremedied for thirty (30) consecutive days following the earlier to occur of (i) notice from the Administrative Agent and (ii) the date on which a Responsible Person of a Loan Party otherwise becomes aware of such non-performance or non-observance.
(d)    Any representation, warranty, certification or statement made by any Loan Party in any Transaction Document to which it is a party or that is contained in any certificate, document or financial or other statement furnished by it at any time pursuant to this Agreement or any such other Transaction Document shall prove to have been inaccurate in any material respect on or as of the date made or deemed made.



(e)    (i) Any Loan Party or Material Originator shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors; (ii) any proceeding shall be instituted by or against any Loan Party or Material Originator seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property and, except in the case of a proceeding involving such Loan Party or Material Originator which was instituted by, or with the cooperation of, or acquiesced in by, such Loan Party or Material Originator, such proceeding remains undismissed, unvacated or unstayed for a period of sixty (60) days; or (iii) the board of directors or similar governing body of such Loan Party or Material Originator shall adopt any corporate, limited liability company or limited partnership, as applicable, resolution to authorize any of the actions set forth in clauses (i) or (ii) of this subsection (e).
(f)    Any order, judgment or decree shall be entered against any Loan Party or Material Originator decreeing the dissolution or split up of such Loan Party or Material Originator and such order shall remain undischarged or unstayed for a period in excess of thirty (30) days.
(g)    The Internal Revenue Service shall file notice of a Lien pursuant to Section 6323 of the Code with regard to a material amount of the Receivables (which (x) have not been deducted from or (y) otherwise are included in the Borrowing Base), and the Collections and Related Security related to such Receivables, and such Lien shall not have been released within ten (10) Business Days.
(h)    (i) There shall occur one or more ERISA Events which individually or in the aggregate results in or would reasonably be expected to result in a Material Adverse Effect or an Originator Material Adverse Effect; or (ii) there exists any fact or circumstance that reasonably could be expected to result in the imposition of a Lien or security interest pursuant to Section 430(k) of the Code or ERISA or a violation of Section 436 of the Code unless the Receivables to which such Lien has attached (x) have been deducted from or (y) otherwise are not included in the Borrowing Base.
(i)    (i) Any money judgment, writ or warrant of attachment or similar process involving in any individual case or in the aggregate in an amount in excess of $60,000,000 (in either case to the extent not adequately covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage) shall be entered or filed against Master Servicer or any one or more Originators, any of their respective Subsidiaries (other than Borrower) or any of their respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days (or in any event later than five (5) days prior to the date of any proposed sale thereunder); or (ii) any money judgment, writ or warrant of attachment or similar process involving in any individual case or in the aggregate in an amount in excess of $100,000 (in either case to the extent not adequately covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage) shall be entered or filed against Borrower or any of its assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days (or in any event later than five (5) days prior to the date of any proposed sale thereunder).



(j)    (i) The occurrence of any “Event of Default” under Section 8(e) (or any successor section thereto) of the TPX Credit Agreement, if the effect of such breach or default is to cause, that Indebtedness to become or be declared due and payable (or subject to a compulsory repurchase or redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be; or (ii) Borrower shall fail to pay any principal of or premium or interest on any of its Indebtedness in excess of $100,000 (other than Indebtedness under this Agreement or any other Transaction Document) which is outstanding when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case prior to the stated maturity thereof.
(k)    A Change of Control shall occur.
(l)    Either (i) a “Termination Date” specified in clauses (i)-(iii) of the definition thereof in the RSA or RSCA shall occur with respect to any Material Originator or (ii) any Material Originator shall for any reason cease to transfer, or cease to have the legal capacity to transfer, or otherwise be incapable of selling or, as applicable, contributing Receivables under the Sale Agreement to which it is a party, provided, however, that upon 30 days’ prior written notice, a Material Originator may cease to sell or, as applicable, contribute Receivables (and otherwise cease to be a party) under the Sale Agreement to which it is a party (or cease to have the legal capacity to transfer, or otherwise be incapable of transferring Receivables under such Sale Agreement) without causing an Amortization Event under this Agreement if (1) such Material Originator has consolidated or merged with or into (or otherwise sold all or substantially all of its assets to) another Originator, or (2) to the extent that (a) the Aggregate Principal continues to be equal to or less than the lesser of the Facility Limit or the Borrowing Base after such Material Originator ceases to sell or contribute, (b) the Performance Guarantor and the remaining Originator(s) agree to such modified transaction terms as may be requested by the Required Lenders as being necessary to maintain an implied rating equivalent to the implied rating of the facility evidenced by this Agreement prior to such Material Originator ceasing to sell or contribute, as determined in the exercise of the Required Lender’s reasonable credit judgment, and (c) no Amortization Event or Potential Amortization Event shall exist after such Material Originator shall cease to sell or contribute; provided that an Originator that is not a Material Originator shall be permitted to cease transferring Receivables and otherwise cease to be a party to the RSA or RSCA, as applicable, subject to satisfaction of the conditions set forth in clauses (2)(a) and (2)(c) above.
(m)    The Performance Undertaking shall cease to be effective or to be the legally valid, binding and enforceable obligation of Performance Guarantor, or Performance Guarantor shall contest in any proceeding in any court or any mediation or arbitral proceeding such effectiveness, validity, binding nature or enforceability of its obligations thereunder.



(n)    (i) This Agreement shall terminate in whole or in part (except in accordance with its terms), or shall cease to be effective or to be the legally valid, binding and enforceable obligation of Borrower, or any Originator shall directly or indirectly contest in any manner such effectiveness, validity, binding nature or enforceability, or (ii) the Administrative Agent shall cease to have a valid and perfected security interest in the Receivables, the Related Security and the Collections with respect thereto, and the Collection Accounts subject in priority only to Permitted Liens other than to the extent that such security interest(s) cease(s) to be valid and perfected as a result of the failure of the Administrative Agent to take any action within its control.
(o)    TPX shall permit its Consolidated Interest Coverage Ratio (as defined in the TPX Credit Agreement) as of the last day of any period of four consecutive fiscal quarters of TPX to be less than 3.00:1.00.
(p)    TPX shall permit its Consolidated Total Leverage Ratio (as defined in the TPX Credit Agreement) as of the last day of any fiscal quarter of TPX to be more than 5.00:1.00; provided that, subject to the limitations set forth in the definition of “Qualifying Material Acquisition” (including the delivery of a “QMA Notice” within the required time period set forth in the definition of Qualifying Material Acquisition), such ratio shall be increased to 5.50:1.00 for four consecutive full fiscal quarters Qualifying Material Acquisition is consummated (such period, the “Financial Covenant Increase Period”); provided that (i) upon a return to a maximum Consolidated Total Leverage Ratio of 5.00:1.00 after any such election, such level must be maintained for at least two full fiscal quarters before Tempur Sealy International, Inc. may make an election for the commencement of a new Financial Covenant Increase Period, and (ii) there shall be no more than two Financial Covenant Increase Periods during the term of this Agreement. Capitalized terms used in this Section 7.1(p) and not defined in this Agreement are used with the meanings attributed thereto in the TPX Credit Agreement.
(q)    TPX shall permit its Consolidated Secured Leverage Ratio (as defined in the TPX Credit Agreement) as of the last day of any fiscal quarter of TPX to be more than 3.50:1.00; provided that, subject to the limitations set forth in the definition of Qualifying Material Acquisition (including the delivery of a QMA Notice within the required time period set forth in the definition of Qualifying Material Acquisition), such ratio shall be increased to 4.00:1.00 for the Financial Covenant Increase Period; provided, further, that upon a return to a maximum Consolidated Secured Leverage Ratio of 3.50:1.00 after any such election, such level must be maintained for at least two full fiscal quarters before Tempur Sealy International, Inc. can make an election for the commencement of a new Financial Covenant Increase Period; provided, further, that there shall be no more than two Financial Covenant Increase Periods during the term of this Agreement.



Section 7.2.    Remedies. Upon the occurrence and during the continuation of a Facility Termination Event, the Administrative Agent may, and shall, upon request of any Lender, take any of the following actions: (i) replace the Person then acting as Master Servicer, (ii) upon notice to the Loan Parties, declare the Amortization Date to have occurred, whereupon the Amortization Date shall forthwith occur, without demand, protest or further notice of any kind, all of which are hereby expressly waived by each Loan Party; provided, however, that upon the occurrence of a Facility Termination Event described in Section 7.1(e) with respect to any Loan Party, or of an actual or deemed entry of an order for relief with respect to any Loan Party under the Federal Bankruptcy Code, the Amortization Date shall automatically occur, without demand, protest or any notice of any kind, all of which are hereby expressly waived by each Loan Party, and (iii) notify Obligors of the Administrative Agent’s interest, for the benefit of the Lenders, in the Receivables. The aforementioned rights and remedies shall be without limitation and shall be in addition to all other rights and remedies of the Administrative Agent otherwise available under any other provision of this Agreement, by operation of law, at equity or otherwise, all of which are hereby expressly preserved, including, without limitation, all rights and remedies provided under the UCC, all of which rights shall be cumulative.
ARTICLE VIII.
INDEMNIFICATION
Section 8.1.    Indemnities by Borrower. (a) Without limiting any other rights that the Administrative Agent and the Lenders may have hereunder or under applicable law, Borrower hereby agrees to indemnify (and pay upon demand to) the Administrative Agent, each Lender and the respective assigns, officers, directors, agents and employees of each of the foregoing (each an “Indemnified Party”) from and against any and all damages, losses, claims, Taxes, liabilities, costs, reasonable expenses and for all other amounts payable, including reasonable fees and disbursements of external counsel (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by the Administrative Agent or such Lender of an interest in the Receivables excluding, however, in all of the foregoing instances:
(A) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(B) Indemnified Amounts to the extent the same include losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor;
(C) Excluded Taxes of such Indemnified Party; or
(D) Indemnified Amounts to the extent they resulted from an action brought by an Indemnified Party against any other Indemnified Party not involving Borrower, Master Servicer or any Originator.



provided, however, that nothing contained in this sentence shall limit the liability of Borrower or limit the recourse of the Administrative Agent or any Lender to Borrower for amounts otherwise specifically provided to be paid by Borrower under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, Borrower shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to Borrower) relating to or resulting from (but expressly excluding from such Indemnified Amounts the Indemnified Amounts and Excluded Taxes referenced in clauses (A), (B), (C) and (D) of the immediately preceding sentence:
(i)    any representation or warranty made by any Loan Party, the Performance Guarantor or any Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document or any other information or report required to be delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(ii)    the failure by any Loan Party or any Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(iii)    any failure of any Loan Party, any Originator or the Performance Guarantor to perform its duties, covenants or other obligations in accordance with the provisions of any Transaction Document to which it is a party;
(iv)    any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v)    any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vi)    the commingling of Collections of Receivables at any time with other funds;
(vii)    any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Advance or any other investigation, litigation or proceeding relating to any Loan Party or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii)    any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
(ix)    any Facility Termination Event described in Section 7.1(e);



(x)    any failure of Borrower to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Borrower to give reasonably equivalent value to the applicable Originator under the RSCA in consideration of the transfer by it of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xi)    any failure to vest and maintain vested in the Administrative Agent a valid and perfected security interest in the Collateral, free and clear of any Adverse Claim (except for Permitted Liens) other than to the extent that such failure to so vest and so maintain vested in the in the Administrative Agent a valid and perfected security interest in the Collateral is as a result of the failure of the Administrative Agent to take any action within its control;
(xii)    the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Collateral, whether on the date hereof or at any subsequent time, except (x) to the extent such failure or delay is caused by the Administrative Agent, or (y) to the extent not required under the Transaction Documents;
(xiii)    any action or omission by any Loan Party which reduces or impairs the rights of the Administrative Agent with respect to any Collateral or the value of any Collateral;
(xiv)    any attempt by any Person to void any Advance or the security interest in the Collateral granted hereunder, whether under statutory provision, common law or equitable action; and
(xv)    the failure of any Receivable included in the calculation of the Borrowing Base as an Eligible Receivable to be an Eligible Receivable at the time so included.



(b)    After receipt by an Indemnified Party of notice of any investigative, administrative or judicial proceeding (collectively, a “Proceeding”) involving such Indemnified Party, such Indemnified Party shall, if a claim in respect thereof is to be made against Borrower hereunder, promptly notify Borrower in writing, and in reasonable detail, of such Proceeding. Upon receipt of notice from an Indemnified Party seeking indemnification hereunder with respect to any such Proceeding, Borrower shall be entitled to assume the defense of any such Proceeding with counsel reasonably satisfactory to the Administrative Agent. Upon Borrower’s assumption of the defense of any such Proceeding, the Indemnified Party shall have the right to participate in such Proceeding and to retain its own counsel but Borrower shall not be liable for any legal expenses of other counsel subsequently incurred by such Indemnified Party in connection with the defense thereof unless (x) Borrower agrees in writing to pay such fees and expenses, (y) Borrower fails to employ counsel reasonably satisfactory to the Administrative Agent in a timely manner, or (z) the Indemnified Party shall have been advised by counsel that there are actual or potential conflicting interests between Borrower, on the one hand, and the Indemnified Party, on the other hand, including situations in which there are one or more legal defenses available to the Indemnified Party that are different from or additional to those available to Borrower; provided, however, that Borrower shall not in any event be responsible hereunder for the fees and expenses of more than one counsel (plus local counsel, where necessary) for all Indemnified Parties in connection with any Proceeding. Borrower shall have the sole authority to settle any claim for monetary damages and, if Borrower chooses not to assume the defense of any such Proceeding, no Indemnified Party will consent to a settlement of, or the entry of any judgment arising from, any Proceeding without Borrower’s prior written consent, which shall not be unreasonably withheld or delayed.
Section 8.2.    Indemnities by Master Servicer. (a) Without limiting any other rights that the Administrative Agent may have hereunder or under applicable law, Master Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party from and against any and all damages, losses, claims, taxes, liabilities, costs, reasonable expenses and for all other amounts payable, including reasonable fees and disbursements of external counsel (all of the foregoing being collectively referred to as “Servicer Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of Master Servicer’s failure to duly and punctually perform its obligations under this Agreement excluding, however, in all of the foregoing instances:
(A) Servicer Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Servicer Indemnified Amounts resulted from gross negligence or willful misconduct on the part of on the part of the Indemnified Party seeking indemnification; and
(B) Servicer Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness or financial inability or unwillingness to pay (other than a dispute giving rise to a Dilution) of the related Obligor;
(C) Servicer Indemnified Amounts to the extent they resulted from an action brought by an Indemnified Party against any other Indemnified Party not involving Borrower, Master Servicer or any Originator.



provided, however, that nothing contained in this sentence shall limit the liability of Master Servicer or limit the recourse of the Administrative Agent to Master Servicer for Collections received by Master Servicer and required to be remitted by it under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, Master Servicer shall indemnify the Indemnified Parties for Servicer Indemnified Amounts relating to or resulting from (but expressly excluding from such Servicer Indemnified Amounts Master Servicer Indemnified Amounts referenced in clauses (A), (B) and (C) from the immediately preceding sentence):
(i)    any representation or warranty made by Master Servicer (or any officers of Master Servicer) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect in any respect when made or deemed made;
(ii)    the failure by Master Servicer to comply with any applicable law, rule or regulation with respect to the collection of any Receivable or Related Security;
(iii)    any failure of Master Servicer to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(iv)    the commingling by Master Servicer of Collections of Receivables or funds or other assets arising therefrom at any time with other funds;
(v)    any investigation, litigation or proceeding relating to Master Servicer in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(vi)    any Facility Termination Event of the type described in Section 7.1(e) with respect to Master Servicer; and
(vii)    any action or omission by Master Servicer relating to its obligations hereunder which reduces or impairs the rights of the Administrative Agent with respect to any Receivable or the value of any such Receivable.



(b)    After receipt by an Indemnified Party of notice of any Proceedings involving such Indemnified Party, such Indemnified Party shall, if a claim in respect thereof is to be made against Master Servicer hereunder, promptly notify Master Servicer in writing, and in reasonable detail, of such Proceeding. Upon receipt of notice from an Indemnified Party seeking indemnification hereunder with respect to any such Proceeding, Master Servicer shall be entitled to assume the defense of any such Proceeding with counsel reasonably satisfactory to the Administrative Agent. Upon Master Servicer’s assumption of the defense of any such Proceeding, the Indemnified Party shall have the right to participate in such Proceeding and to retain its own counsel but Master Servicer shall not be liable for any legal expenses of other counsel subsequently incurred by such Indemnified Party in connection with the defense thereof unless (x) Master Servicer agrees in writing to pay such fees and expenses, (y) Master Servicer fails to employ counsel reasonably satisfactory to the Administrative Agent in a timely manner, or (z) the Indemnified Party shall have been advised by counsel that there are actual or potential conflicting interests between Master Servicer, on the one hand, and the Indemnified Party, on the other hand, including situations in which there are one or more legal defenses available to the Indemnified Party that are different from or additional to those available to Master Servicer; provided, however, that Master Servicer shall not in any event be responsible hereunder for the fees and expenses of more than one counsel (plus local counsel, where necessary) for all Indemnified Parties in connection with any Proceeding. Master Servicer shall have the sole authority to settle any claim for monetary damages and, if Master Servicer chooses not to assume the defense of any such Proceeding, no Indemnified Party will consent to a settlement of, or the entry of any judgment arising from, any Proceeding without Master Servicer’s prior written consent, which shall not be unreasonably withheld or delayed.
Section 8.3.    Costs and Expenses. Borrower shall pay (a) all reasonable and documented or invoiced out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including, but not limited to, the reasonable fees, disbursements and other charges of counsel which shall be limited to the reasonable and documented or invoiced out-of-pocket fees, disbursements and other charges of a single counsel, as counsel to the Administrative Agent, and if necessary, of one regulatory and one local counsel retained by the Administrative Agent in each relevant regulatory field and each relevant jurisdiction, respectively), in connection with the preparation, negotiation, execution, delivery and administration of this Agreement (including periodic lien searches and good standing verifications) and the other Transaction Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and (b) all out-of-pocket expenses incurred by the Administrative Agent and each Lender (including, but not limited to, the reasonable fees, disbursements and other charges of counsel which shall be limited to the reasonable and documented or invoiced out-of-pocket fees, disbursements and other charges of (x) a single counsel, as counsel to the Administrative Agent and the Lenders, (y) if necessary, of one regulatory and one local counsel to the Administrative Agent retained by the Administrative Agent in each relevant regulatory field and each relevant jurisdiction, respectively and (z) in the case of any actual or reasonably perceived conflict of interest, one additional legal counsel for all similarly situated Persons in each applicable jurisdiction), in each case, in connection with the enforcement or protection of its rights (1) in connection with this Agreement and the other Transaction Documents, including its rights under this Section, or (2) in connection with the Advances made hereunder (including negotiations related thereto), including all such out-of-pocket expenses incurred during any workout and restructuring. If any reasonable cost or out-of-pocket expense covered by this Section 8.3 (“Covered Expense”) is not paid within 30 days of Borrower’s receipt of an invoice therefor, setting forth in reasonable detail the goods or services giving rise thereto, the Administrative Agent may (but shall not be obligated to) charge the aggregate outstanding Aggregate Principal of the Advances therefor and pay such Covered Expense directly.



ARTICLE IX.
ADMINISTRATIVE AGENT
Section 9.1.    Appointment and Authorization of Administrative Agent. Each of the Lenders hereby irrevocably designates and appoints Wells Fargo as its Administrative Agent hereunder and under the Transaction Documents to which the Administrative Agent is a party, and authorizes the Administrative Agent to take such action on its behalf under the provisions of the Transaction Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of the Transaction Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth in the Transaction Documents to which it is a party, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of the Administrative Agent shall be read into any Transaction Document or otherwise exist against the Administrative Agent. The provisions of this Article IX are solely for the benefit of the Administrative Agent and the Lenders, and none of the Loan Parties shall have any rights as a third-party beneficiary or otherwise under any of the provisions of this Article IX, except that this Article IX shall not affect any obligations which the Administrative Agent or any of the Lenders may have to any of the Loan Parties under the other provisions of this Agreement.
Section 9.2.    Delegation of Duties. The Administrative Agent may execute any of its duties under the applicable Transaction Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of agents or attorneys-in-fact selected by it with reasonable care for due diligence and audit matters and attorneys selected with reasonable care for legal matters.
Section 9.3.    Exculpatory Provisions. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be (i) liable for any action lawfully taken or omitted to be taken by it or them or any Person described in Section 9.2 under or in connection with this Agreement (except for its, their or such Person’s own bad faith, gross negligence or willful misconduct), or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by Borrower contained in this Agreement or in any certificate, report, statement or other document referred to or provided for in, or received under or in connection with, this Agreement or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other document furnished in connection herewith, or for any failure of either of the Loan Parties to perform its respective obligations hereunder, or for the satisfaction of any condition specified in Article IV, except receipt of items required to be delivered to the Administrative Agent. The Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements or covenants contained in, or conditions of, this Agreement, or to inspect the properties, books or records of the Loan Parties.



Section 9.4.    Reliance by the Administrative Agent. The Administrative Agent shall in all cases be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, telegram, telecopy or telex message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Loan Parties), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent shall in all cases be fully justified in failing or refusing to take any action under this Agreement or any other document furnished in connection herewith unless it shall first receive such advice or concurrence of such of the Lenders as it shall determine to be appropriate under the relevant circumstances, or it shall first be indemnified to its satisfaction by the Lenders against any and all liability, cost and expense which may be incurred by it by reason of taking or continuing to take any such action. Any action taken by the Administrative Agent in accordance with this Section 9.4 shall be binding upon all of the Lenders.
Section 9.5.    Notice of Events. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any actual or potential Amortization Event or Facility Termination Event (any of the foregoing, an “Event”) unless the Administrative Agent has received notice from a Lender or a Loan Party referring to this Agreement, stating that such an Event has occurred and describing such Event. In the event that the Administrative Agent receives such a notice, it shall promptly give notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Event as shall be directed by the Required Lenders, provided that the Administrative Agent is indemnified to its satisfaction by the Lenders against any and all liability, cost and expense which may be incurred by it by reason of taking any such action.
Section 9.6.    Non-Reliance on Other Lenders. Each of the Lenders expressly acknowledges that neither the Administrative Agent, not any of its directors, employees, agents, attorneys-in-fact or affiliates has made any representations or warranties to it and that no act by the Administrative Agent hereafter taken, including, without limitation, any review of the affairs of the Loan Parties, shall be deemed to constitute any representation or warranty by the Administrative Agent. Each of the Lenders also represents and warrants to the Administrative Agent and the other Lenders that it has, independently and without reliance upon any such Person (or any of their Affiliates) and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, prospects, financial and other conditions and creditworthiness of the Loan Parties and made its own decision to enter into this Agreement. Each of the Lenders also represents that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, prospects, financial and other condition and creditworthiness of the Loan Parties. The Administrative Agent, the Lenders and their respective Affiliates, shall have no duty or responsibility to provide any party to this Agreement with any credit or other information concerning the business, operations, property, prospects, financial and other condition or creditworthiness of the Loan Parties which may come into the possession of such Person or any of its respective officers, directors, employees, agents, attorneys-in-fact or affiliates, except that the Administrative Agent shall promptly distribute to the Lenders, copies of financial and other information expressly provided to it by any of the Loan Parties pursuant to this Agreement.



Section 9.7.    Indemnification of Administrative Agent. Each Lender agrees to indemnify the Administrative Agent and its officers, directors, employees, representatives and agents (to the extent not reimbursed by the Loan Parties and without limiting the obligation of the Loan Parties to do so), ratably in accordance with their respective Loans, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent or such Person in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not the Administrative Agent or such Person shall be designated a party thereto) that may at any time be imposed on, incurred by or asserted against the Administrative Agent or such Person as a result of, or arising out of, or in any way related to or by reason of, any of the transactions contemplated hereunder or the execution, delivery or performance of this Agreement or any other document furnished in connection herewith (but excluding any such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the bad faith, gross negligence or willful misconduct of the Administrative Agent or such Person as finally determined by a court of competent jurisdiction).
Section 9.8.    Administrative Agent in its Individual Capacity. The Person serving as the Administrative Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Loan Parties and their Affiliates as though it were not the Administrative Agent hereunder. With respect to its Loans, it any, pursuant to this Agreement, such Person shall have the same rights and powers under this Agreement as any Lender and may exercise the same as though it were not the Administrative Agent, and the terms “Lender” and “Lenders” shall include each of the Administrative Agent in its individual capacity.
Section 9.9.    UCC Filings. Each of the Lenders hereby expressly recognizes and agrees that the Administrative Agent may be listed as the assignee or secured party of record on the various UCC filings required to be made under the Transaction Documents in order to perfect their respective interests in the Collateral, that such listing shall be for administrative convenience only in creating a record or nominee holder to take certain actions hereunder on behalf of the Lenders and that such listing will not affect in any way the status of the Lenders as the true parties in interest with respect to the Collateral. In addition, such listing shall impose no duties on the Administrative Agent other than those expressly and specifically undertaken in accordance with this Article IX.
ARTICLE X.
ASSIGNMENTS; PARTICIPATIONS
Section 10.1.    Successors and Assigns.
(a)    Assignments by Lenders. Each Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement and the other Transaction Documents (including all or a portion of its Commitment and Loans at the time owing to it); provided that any such assignment shall (i) be in a minimum mount not less than $5,000,000, and (ii) require the consent of Borrower (which consent shall not be unreasonably withheld or delayed) unless a Facility Termination Event exists and is continuing.



(b)    Register. The Administrative Agent, acting solely for this purpose as an agent of Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative Agent’s Lending Office a copy of each assignment agreement delivered to it (or the equivalent thereof in electronic form) and a register in which it shall record the names and addresses of the assignee(s), and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each assignee and the Administrative Agent pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and Borrower and the Administrative Agent shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as the Administrative Agent hereunder for all purposes of this Agreement. The Register shall be available for inspection by Borrower and the Administrative Agent, at any reasonable time and from time to time upon reasonable prior notice.
(c)    Participations. Each Lender may at any time, without the consent of, or notice to, Borrower, sell participations to any Person (other than a natural Person, a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) Borrower shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification (A) that extends the Facility Termination Date or the date of any payment or deposit of Collections by Borrower or Master Servicer, (B) reduces the rate or extends the time of payment of Interest (or any component of Interest) on any of such Lender’s Loans, (C) reduces any Fee payable to the Participant, (D) changes the Principal of any of such Lender’s, (E) releases all or substantially all of the Collateral, (F) amends, modifies or waives any provision of this Section 10.1(c), (G) consents to or permits the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (H) changes the definition of “Adjusted Net Pool Balance,” “Amortization Event”, “Borrowing Base”, “Commitment”, “Concentration Limit”, “Facility Termination Event”, “Net Pool Balance,” or “Required Reserve” or (I) amends or modifies any defined term (or any defined term used directly or indirectly in such defined term) used in clauses (A) through (H) above in a manner that would circumvent the intention of the restrictions set forth in such clauses.
(d)    Certain Pledges. Each Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
ARTICLE XI.
GRANT OF SECURITY INTEREST
Section 11.1.    Grant of Security Interest. Borrower hereby grants to the Administrative Agent, for the benefit of the Lenders, a continuing security interest in all of Borrower’s right, title and interest in, to and under all Receivables now existing or hereafter arising, the Collections, each Lock-Box, the Sweep Account and each other Collection Account, all Related Security, all other rights and payments



relating to such Receivables, and all proceeds of any of the foregoing (collectively, the “Collateral”), prior to all other Liens (other than Permitted Liens) therein to secure the prompt and complete payment of the Aggregate Unpaids and the performance of all of Borrower’s obligations under the Transaction Documents. The Administrative Agent is hereby authorized to file a financing statement naming Borrower as the debtor and describing the collateral covered thereby as “all assets and the proceeds thereof” or words of similar effect. The Administrative Agent shall have, in addition to the rights and remedies that it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other applicable law, which rights and remedies shall be cumulative.
ARTICLE XII.
MISCELLANEOUS
Section 12.1.    Waivers and Amendments.
(a)    No failure or delay on the part of the Administrative Agent or any Lender in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other further exercise thereof or the exercise of any other power, right or remedy. The rights and remedies herein provided shall be cumulative and nonexclusive of any rights or remedies provided by law. Any waiver of this Agreement shall be effective only in the specific instance and for the specific purpose for which given.
(b)    No amendment or waiver of any provision of this Agreement nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and signed by each of the Loan Parties, the Administrative Agent and the Required Lenders, and any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(iv)    Without the prior written consent of each of the Lenders, the parties will not agree to any amendment, waiver or other modification (A) that extends the Facility Termination Date or the date of any payment or deposit of Collections by Borrower or Master Servicer, (B) reduces the rate or extends the time of payment of Interest (or any component of Interest) on the Advances, (C) reduces the amount of any Fee payable pursuant to the Lenders’ Fee Letter, (D) changes the amount of any Commitment or the Principal amount of any Advance, (E) releases all or substantially all of the Collateral, (F) amends, modifies or waives any provision of this Section 12.1(b), (G) consents to or permits the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (H) changes the definition of “Adjusted Net Pool Balance”, “Amortization Event”, “Borrowing Base”, “Commitment”, “Concentration Limit”, “Facility Termination Event”, “Net Pool Balance”, or “Required Reserve” or (I) amends or modifies any defined term (or any defined term used directly or indirectly in such defined term) used in clauses (A) through (H) above in a manner that would circumvent the intention of the restrictions set forth in such clauses. Any modification or waiver made in accordance with this Section 12.1 shall be binding upon each of the parties hereto.
(v)    Without the prior written consent of the Administrative Agent, no such amendment, waiver or consent shall amend, modify, terminate or waive any provision of Article XI as the same applies to the Administrative Agent, change the amount of any Fee payable to the Administrative Agent under the Administrative Agent’s Fee Letter or any other provision hereof as the same applies to the rights or obligations of the Administrative Agent, in each case without the consent of the Administrative Agent,



Section 12.2.    Notices. Except as provided in this Section 12.2, all communications and notices provided for hereunder shall be in writing (including electronic mail, bank wire, telecopy or electronic facsimile transmission or similar writing) and shall be given to the other parties hereto at their respective addresses or telecopy numbers set forth on the signature pages hereof or at such other address or telecopy number as such Person may hereafter specify for the purpose of notice to each of the other parties hereto. Each such notice or other communication shall be effective (a) if given by telecopy or electronic mail, upon the receipt thereof, (b) if given by mail, three (3) Business Days after the time such communication is deposited in the mail with first class postage prepaid or (c) if given by any other means, when received at the address specified in this Section 12.2. Borrower hereby authorizes the Administrative Agent to effect Advances and Aggregate Reductions based on electronic mail notices made by any Person whom the Administrative Agent in good faith believes to be acting on behalf of Borrower.
Section 12.3.    Setoff. If a Facility Termination Event shall have occurred and be continuing, each of the Lenders and each of its respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or the account of Borrower against any and all of the obligations of Borrower now or hereafter existing under this Agreement or any other Transaction Document to such Lender or its respective Affiliates, irrespective of whether or not such Lender or Affiliate shall have made any demand under this Agreement or any other Transaction Document and although such obligations of Borrower may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness. The rights of each Lender and its respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or its respective Affiliates may have. Each Lender agrees to notify Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Section 12.4.    Protection of Security Interests.
(a)    Borrower agrees that from time to time, at its expense, it will promptly execute and deliver all instruments and documents, and take all actions, that may be necessary or desirable, or that the Administrative Agent may reasonably request, to perfect, protect or more fully evidence the Administrative Agent’s security interest in the Collateral, or to enable the Administrative Agent to exercise and enforce its rights and remedies hereunder provided that Borrower shall not be required to take any action to grant or perfect any lien or security interest in Collateral in a Foreign Jurisdiction or under or pursuant to the laws of a Foreign Jurisdiction (and Borrower shall not be required to enter into any security agreements or pledge agreements governed by laws of any Foreign Jurisdictions) unless and until a Facility Termination Event has occurred and is continuing, the Administrative Agent is exercising rights and remedies under this Agreement, the Administrative Agent requires Borrower to take such action and such action is required in connection with the Administrative Agent’s exercise of its rights and remedies hereunder. At any time after the Dominion Date, the Administrative Agent may, or may direct Borrower or Master Servicer to, notify the Obligors of Receivables, at Borrower’s expense, of the security interests of the Administrative Agent under this Agreement and may also direct that payments of all amounts due or that become due under any or all Receivables be made directly to the Administrative Agent or its designee. Borrower or Master Servicer (as applicable) shall, at the Administrative Agent’s request, withhold the identity of the Administrative Agent in any such notification.



(b)    If any Loan Party fails to perform any of its obligations hereunder, the Administrative Agent may (but shall not be required to) perform, or cause performance of, such obligations, and the Administrative Agent’s costs and expenses incurred in connection therewith shall be payable by Borrower as provided in Section 8.3. Each Loan Party irrevocably authorizes the Administrative Agent any time and from time to time in the sole discretion of the Administrative Agent, and appoints the Administrative Agent its attorney-in-fact, to act on behalf of such Loan Party to execute on behalf of Borrower as debtor and to file financing statements necessary or desirable in the Administrative Agent’s sole discretion to perfect and to maintain the perfection and priority of the interest of the Administrative Agent in the Receivables, including, financing statements describing as the collateral covered thereby consistent with the description of Collateral set forth herein provided that, Borrower shall not be required to take any action to grant or perfect any lien or security interest in Collateral in a Foreign Jurisdiction or under or pursuant to the laws of a Foreign Jurisdiction (and Borrower shall not be required to enter into any security agreements or pledge agreements governed by laws of any Foreign Jurisdictions) unless and until a Facility Termination Event has occurred and is continuing, the Administrative Agent is exercising rights and remedies under this Agreement, the Administrative Agent requires Borrower to take such action and such action is required in connection with the Administrative Agent exercising its rights and remedies hereunder. This appointment is coupled with an interest and is irrevocable.
Section 12.5.    Confidentiality. Each of the Administrative Agent and the Lenders agrees to keep confidential the terms of the Fee Letters and all non-public information provided to it by any Loan Party pursuant to or in connection with this Agreement that is designated by the provider thereof as confidential; provided that nothing herein shall prevent the Administrative Agent or any Lender from disclosing any such information (a) to any affiliate of the Administrative Agent or a Lender, (b) subject to an agreement to comply with confidentiality obligations at least as restrictive as those contained in this Section, to any actual or prospective assignee of the Administrative Agent of any Lender (or any professional advisor to such counterparty), (c) to its employees, directors, agents, independent auditors, ratings agencies, attorneys, accountants and other professional advisors or those of any of its affiliates, in each case, who are instructed to comply with the confidentiality provisions herein, (d) upon the request or demand of any Governmental Authority, (e) in response to any order of any court or other Governmental Authority or as may otherwise be required pursuant to any Requirement of Law, (f) if requested or required to do so in connection with any litigation or similar proceeding, (g) that has been (i) publicly disclosed without breach of the terms of this Section 12.5, (ii) received by the Administrative Agent or a Lender from a third party that is not, to the knowledge of the Administrative Agent, subject to contractual or fiduciary confidentiality obligations owing to any Loan Party with respect to such information or (iii) independently developed by the Administrative Agent or a Lender, (h) to the National Association of Insurance Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, (i) in connection with the exercise of any remedy hereunder or under any other Transaction Document, (j) if agreed in writing by TPX in its sole discretion, to any other Person, (k) pursuant to customary disclosure about the terms of the financing contemplated hereby in the ordinary course of business to market data collectors and similar service providers to the securitization or loan industry for league table purposes or (k) to its permitted pledgees and secured parties (including the Federal Reserve Bank of New York or any other central bank). Each of the Administrative Agent and the Lenders acknowledges that information furnished to it pursuant to this Agreement or the other Transaction Documents may include material non-public information concerning TPX and its Affiliates and their related parties or their respective securities, and confirms that it has developed compliance procedures regarding the use of material non-public information and that it will handle such material non-public information in accordance with those procedures and applicable



law, including Federal and state securities laws. All information, including requests for waivers and amendments, furnished by TPX, the Administrative Agent or any Lender pursuant to, or in the course of administering, this Agreement or the other Transaction Documents will be syndicate-level information, which may contain material non-public information about TPX and its Affiliates and their related parties or their respective securities. Accordingly, each of the Administrative Agent and the Lenders represents to TPX that it has identified a credit contact who may receive information that may contain material non-public information in accordance with its compliance procedures and applicable law, including Federal and state securities laws.
Section 12.6.    Power of Attorney. Borrower hereby irrevocably designates and appoints the Administrative Agent (and all Persons designated by the Administrative Agent) as Borrower’s true and lawful attorney-in-fact, and authorizes the Administrative Agent, in Borrower’s or the Administrative Agent’s name, to at any time a Facility Termination Event exists or has occurred and is continuing: (i) demand payment on Receivables or other Collateral; (ii) enforce payment of Receivables by legal proceedings or otherwise; (iii) exercise all of Borrower’s rights and remedies to collect any Receivable or other Collateral; (iv) sell or assign any Receivable upon such terms, for such amount and at such time or times as the Administrative Agent deems advisable; (v) settle, adjust, compromise, extend or renew any Receivable; (vi) discharge and release any Receivable; (vii) prepare, file and sign Borrower’s name on any proof of claim in bankruptcy or other similar document against an account debtor or other obligor in respect of any Receivables or other Collateral; (viii) notify the post office authorities to change the address for delivery of remittances from Obligors in respect of Receivables or other proceeds of Collateral to an address designated by the Administrative Agent, and open and dispose of all mail addressed to Borrower and handle and store all mail relating to the Collateral; (ix) do all acts and things which are necessary, in the Administrative Agent’s determination, to fulfill Borrower’s obligations under this Agreement and the other Transaction Documents, (x) take control in any manner of any item of payment in respect of Receivables or constituting Collateral or otherwise received in or for deposit in a Collection Account or otherwise received by the Administrative Agent, (xi) have access to any Lock-Box into which remittances of Collections are sent or received, (xii) endorse Borrower’s name upon any items of payment in respect of Receivables or constituting Collateral or otherwise received by the Administrative Agent and deposit the same in the Administrative Agent’s Account for application to the Aggregate Unpaids, (xiii) endorse Borrower’s name upon any chattel paper, document, instrument, invoice, or similar document or agreement relating to any Receivable or any goods pertaining thereto or any other Collateral, including any warehouse or other receipts, or bills of lading and other negotiable or non-negotiable documents, and (xiv) sign Borrower’s name on any verification of Receivables and notices thereof to account debtors or any secondary obligors or other obligors in respect thereof. Borrower hereby releases the Administrative Agent and its officers, employees and designees from any liabilities arising from any act or acts under this power of attorney and in furtherance thereof, whether of omission or commission, except as a result of the Administrative Agent’s own gross negligence, willful misconduct or fraud as determined pursuant to a final non-appealable order of a court of competent jurisdiction.
Section 12.7.    Limitation of Liability. No claim may be made by any party or any other Person against any other party or its respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and each of the parties hereto hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.



Section 12.8.    CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH SHALL APPLY HERETO) EXCEPT TO THE EXTENT THAT THE PERFECTION OF THE ADMINISTRATIVE AGENT’S SECURITY INTEREST IN THE COLLATERAL OR REMEDIES HEREUNDER IN RESPECT THEREOF ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
Section 12.9.    CONSENT TO JURISDICTION. EACH LOAN PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER, IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF AND EACH OF THE LOAN PARTIES IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE LOAN PARTIES AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER TRANSACTION DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT AGAINST BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT IN ANY SUCH COURT. EACH OF THE LOAN PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
Section 12.10.    WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY ANY LOAN PARTY PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Section 12.11.    Integration; Binding Effect; Survival of Terms.
(a)    This Agreement and each other Transaction Document contain the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and thereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof superseding all prior oral or written understandings.



(b)    This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns (including any trustee in bankruptcy). This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms and shall remain in full force and effect until terminated in accordance with its terms; provided, however, that the rights and remedies with respect to (i) any breach of any representation and warranty made by any Loan Party pursuant to Article III, (ii) the indemnification and payment provisions of Article VIII, and Sections 12.5 through and including 12.10 shall be continuing and shall survive any termination of this Agreement.
Section 12.12.    Counterparts; Severability; Section References. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. To the fullest extent permitted by applicable law, delivery of an executed counterpart of a signature page of this Amendment by telefacsimile or electronic image scan transmission (such as a “pdf” file) will be effective to the same extent as delivery of a manually executed original counterpart of this Amendment. Any party who delivers an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Agreement, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement. Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Unless otherwise expressly indicated, all references herein to “Article,” “Section,” “Schedule” or “Exhibit” shall mean articles and sections of, and schedules and exhibits to, this Agreement.
Section 12.13.    Patriot Act. The Administrative Agent hereby notifies Borrower and Master Servicer that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies Borrower, Master Servicer and their respective Subsidiaries, which information includes the names and addresses of Borrower, the Originators, Master Servicer and their respective Subsidiaries and other information that will allow the Administrative Agent to identify such parties in accordance with the Patriot Act.




IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized officers as of the date hereof.
TEMPUR SEALY RECEIVABLES, LLC, AS BORROWER
BY: TEMPUR-PEDIC NORTH AMERICA, LLC, ITS MANAGER

By: _____________________________
Name: James M. Schockett
Title: Vice President and Treasurer

Address:
1000 Tempur Way
Lexington, KY 40511
Attention: Santiago X. Bravo
Phone: (859) 455-4728
Fax: n/a
Email: Santiago.Bravo@tempursealy.com

TEMPUR SEALY INTERNATIONAL, INC., AS MASTER SERVICER

By: _________________
Name: Bhaskar Rao
Title: Executive Vice President and Chief Financial Officer

Address:
1000 Tempur Way
Lexington, KY 40511
Attention: Santiago X. Bravo
Phone: (859) 455-4728
Fax: n/a
Email: Santiago.Bravo@tempursealy.com





WELLS FARGO BANK, NATIONAL ASSOCIATION, AS THE ADMINISTRATIVE AGENT

By: ___________________________
Name: Jonathan Davis
Title: Assistant Vice President
Address:    Wells Fargo Bank, National Association
1100 Abernathy Rd., NE
Suite 1500, MAC G0189-160
Atlanta, GA 30328
Attention:    Jonathan Davis
Email:        WFCFReceivablesSecuritizationAtlanta@wellsfargo.com; jonathan.davis@wellsfargo.com
Phone:        (770) 508-2162;     cell: (404) 430-3777
Fax:        (855) 818-1932

SUMITOMO MITSUI BANKING CORPORATION

By: _______________________________
Name:
Title:
Address:
Sumitomo Mitsui Banking Corporation
277 Park Avenue
New York, New York 10172
Attention:     Randall Wernes
Email:        rwernes@smbcnikko-si.com
Telephone:     (212) 224- 4008
With a copy to:
SMBC Nikko Securities America, Inc.
277 Park Avenue
New York, NY 10172
Attention:     Peter Nakhla / Cristina Trentacoste
Email:         pnakhla@smbcnikko-si.com / ctrentacoste@smbcnikko-si.com
Telephone:     (212) 224-5370 / (212) 224-5466




EXHIBIT I
DEFINITIONS
Capitalized terms used and not otherwise defined in this Agreement (including this Exhibit I for the avoidance of doubt), are used with the meanings attributed thereto in the RSCA.
Except as otherwise specified in this Agreement, all references in this Agreement (i) to any Person (other than Borrower) shall be deemed to include such Person’s successors and assigns, and (ii) to any law, agreement, statute or contract specifically defined or referred to in this Agreement shall be deemed references to such law, agreement, statute or contract as the same may be supplemented, amended, waived, consolidated, replaced or modified from time to time, but only to the extent permitted by, and effected in accordance with, the terms thereof. The words “herein,” “hereof” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any provision of this Agreement, and references to “Article,” “Section,” “paragraph,” “Exhibit,” “Schedule” and “Appendix” are references to this Agreement unless otherwise specified. Whenever the context so requires, words importing any gender include the other gender. Any of the defined terms may, unless the context otherwise requires, be used in the singular or the plural depending on the reference; the singular includes the plural and the plural includes the singular. The word “or” shall not be exclusive.
All accounting terms not otherwise defined in this Agreement shall have the meanings assigned them in conformity with GAAP. All terms used in Article 9 of the UCC and not specifically defined in this Agreement shall be defined herein and in the Transaction Documents as such terms are defined in Article 9 of the UCC as in effect in the State of New York. Each reference to this Agreement, any other Transaction Document, or any other agreement shall be a reference to such agreement together with all exhibits, schedules, attachments and appendices thereto, in each case as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof unless otherwise expressly stated. References to “writing” include telecopying, printing, typing, lithography and other means of reproducing words in a tangible visible form including computer generated information accessible in tangible visible form. References to “written” include faxed, printed, typed, lithographed and other means of reproducing words or symbols in a tangible visible form consistent with the preceding sentence. The words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation”. For purposes of determining any ratio or making financial calculations hereunder that include a reference to one or more months in such determination, such reference shall be deemed a reference to a Calculation Period.
If at any time any change in GAAP (including the adoption of IFRS) would affect any covenant or other provision of this Agreement, including without limitation, the computation of any financial ratio or requirement set forth in any Transaction Document, and either Borrower or the Required Lenders shall so request, the Administrative Agent and Borrower shall negotiate in good faith to amend such covenant or other provision to preserve the original intent thereof in light of such change in GAAP; provided that, until so amended, (i) such covenant or other provision shall continue to be computed in accordance with GAAP prior to such change therein and (ii) Borrower shall deliver a certificate in reasonable detail specifying the nature of such change and the effect thereof on such calculations. Notwithstanding any other provisions set forth herein, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the Audited Financial Statements for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.



The phrase “in consultation with Borrower” shall be deemed to mean “after discussion with Borrower,” but, for the avoidance of doubt, shall not be deemed to imply that Borrower’s consent to or concurrence with the Administrative Agent’s or the Lenders’ decided course of action.
Unless otherwise expressly provided herein, any period of time ending on a day which is not a Business Day shall end on the next succeeding Business Day. Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding.”
In addition, as used in this Agreement, the following terms shall have the following meanings:
61+ Day Delinquency Ratio” means, at any time, a percentage equal to (a) the aggregate outstanding principal balance of all Receivables that were 61+ Day Delinquent Receivables at such time divided by (b) the aggregate outstanding principal balance of all Receivables at such time.
61+ Day Delinquent Receivable” means a Receivable as to which any payment, or part thereof, remains unpaid for more than 60 days from the original due date.
Adjusted Dilution Ratio” means, at any time, the rolling average of the Dilution Ratios for the 12 Calculation Periods then most recently ended.
Adjusted Net Pool Balance” means the Net Pool Balance minus the Contractual Dilution Amount.
Administrative Agent” has the meaning set forth in the preamble to this Agreement.
Administrative Agent’s Account” means account no. xxxxxxxxxxxxxxxxx, at Wells Fargo Bank, National Association, 420 Montgomery Street, San Francisco, CA, ABA No. XXXXXXXXXXX, Reference: Tempur Sealy Receivables, LLC, or any other account or accounts as the Administrative Agent may indicate from time to time.
Administrative Agent’s Fee Letter” means that certain Fee Letter dated as of April 6, 2021 by and between Borrower and the Administrative Agent, as the same may be amended, restated or otherwise modified from time to time.
Advance” means the aggregate amount of Principal advanced to Borrower by the Lenders on a Borrowing Date. An Advance may be an Incremental Advance or a Rollover Advance.
Adverse Claim” means any Lien or other right or claim in, of or on any Person’s assets or properties in favor of any other Person (but excluding all claims by any Originator for payment in regard to Receivables sold by such Originator to Borrower).
Adverse Proceeding” means any action, suit, proceeding, hearing (in each case, whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Borrower) at law or in equity, or before or by any Governmental Authority, domestic or foreign, whether pending or, to the knowledge of any Responsible Person of Borrower, threatened against or affecting Borrower or any property of Borrower.



Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person or any Subsidiary of such Person. A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of voting securities of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by Contract or otherwise.
Agent-Related Persons” means the Administrative Agent, together with its Affiliates, officers, directors, employees, attorneys, and agents.
Aggregate Commitment” means, on any date of determination, the sum of the Lenders’ respective Commitments.
Aggregate Principal” means the aggregate amount of Principal outstanding on all Loans.
Aggregate Reduction” has the meaning specified in Section 1.3(b).
Aggregate Unpaids” means, at any time, the sum of the Aggregate Principal and all Required Amounts.
Agreement” means this Amended and Restated Credit and Security Agreement, as it may be amended, restated, supplemented or otherwise modified and in effect from time to time.
Alternate Base Rate” means, for any day, a rate per annum equal to the higher as of such day of (i) the Prime Rate, or (ii) one-half of one percent (0.50%) above the Federal Funds Rate. For purposes of determining the Alternate Base Rate for any day, changes in the Prime Rate or the Federal Funds Rate shall be effective on the date of each such change.
Amortization Date” means the earlier to occur of (a) the Business Day immediately prior to the occurrence of a Facility Termination Event set forth in Section 7.1(e) and (b) the Business Day specified in a written notice from the Administrative Agent following the occurrence and during continuation of any other Amortization Event.
Amortization Event” means the occurrence of any of the following: (a) at the end of any Calculation Period (i) the average of the 61+ Day Delinquency Ratios for the three Calculation Periods then most recently ended shall exceed 40.00%, (ii) the average of the Default Ratios for the three Calculation Periods then most recently ended shall exceed 8.00%, or (iii) the average of the Dilution Ratios for the three Calculation Periods then most recently ended shall exceed 15.00%; (b) a “Termination Date” specified in clause (iv) of the definition thereof in the RSA or RSCA shall occur with respect to any Material Originator; or (c) a Facility Termination Event.
Applicable Margin” has the meaning set forth in the Fee Letter; provided, however, that from and after the occurrence of a Facility Termination Event, the Applicable Margin shall increase by 200 basis points.
Authorized Person” means any manager, employee or person acting in any other capacity on behalf of Borrower who, in each case, has been authorized by the Board of Managers to act as a legally authorized agent or other representative of Borrower in connection with the performance of any obligations or covenants under the Transaction Documents.



Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark or (y) otherwise, a period of one-month.
Benchmark” means, initially, LMIR; provided that if a Benchmark Transition Event, a Term SOFR Transition Event, or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to USD LIBOR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 1.7(c)(i).
Benchmark Replacement” means, for any Available Tenor,
(a)    with respect to any Benchmark Transition Event or Early Opt-in Election, the first alternative set forth in the order below that can be determined by the Administrative Agent, in consultation with the Borrower, for the applicable Benchmark Replacement Date:
(1)    the sum of: (A) Term SOFR and (B) the related Benchmark Replacement Adjustment; provided that, if Borrower has provided a notification to the Administrative Agent in writing on or prior to such Benchmark Replacement Date that Borrower has a Hedge Agreement in place with respect to any of the Loans as of the date of such notice (which such notification the Administrative Agent shall be entitled to rely upon and shall have no duty or obligation to ascertain the correctness or completeness of), then the Administrative Agent, in its sole discretion, may decide not to determine the Benchmark Replacement pursuant to this clause (a)(1) for such Benchmark Transition Event or Early Opt-in Election, as applicable;
(2)    the sum of: (A) Daily Simple SOFR and (B) the related Benchmark Replacement Adjustment;
(3)    the sum of: (A) the alternate benchmark rate that has been selected by the Administrative Agent and Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (B) the related Benchmark Replacement Adjustment; or
(b)    with respect to any Term SOFR Transition Event, the sum of (i) Term SOFR and (ii) the related Benchmark Replacement Adjustment;



provided that, (i) in the case of clause (a)(1), if the Administrative Agent decides that Term SOFR is not administratively feasible for the Administrative Agent, then Term SOFR will be deemed unable to be determined for purposes of this definition and (ii) in the case of clause (a)(1) or clause (b) of this definition, the applicable Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion. If the Benchmark Replacement as determined pursuant to clause (a)(1), (a)(2) or (a)(3) or clause (b) of this definition would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Transaction Documents.
Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
(1)    for purposes of clauses (a)(1) and (a)(2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent, in consultation with the Borrower:
(a)    the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Available Tenor of such Benchmark with the applicable Unadjusted Benchmark Replacement;
(b)    the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Available Tenor of such Benchmark;
(2)    for purposes of clause (a)(3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Available Tenor of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Available Tenor of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities; and
(3)    for purposes of clause (b) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Available Tenor of USD LIBOR with a SOFR-based rate;



provided that, (x) in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion and (y) if the then-current Benchmark is a term rate, more than one tenor of such Benchmark is available as of the applicable Benchmark Replacement Date and the applicable Unadjusted Benchmark Replacement that will replace such Benchmark in accordance with Section 1.7(c)(i) will not be a term rate, the Available Tenor of such Benchmark for purposes of this definition of “Benchmark Replacement Adjustment” shall be deemed to be, with respect to each Unadjusted Benchmark Replacement having a payment period for interest calculated with reference thereto, the Available Tenor that has approximately the same length (disregarding business day adjustments) as such payment period.
Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate, the definition of “Business Day,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent, in consultation with the Borrower, decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Transaction Documents).
Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(1)    in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator