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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549

FORM 8-K/A

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

Date of report (Date of earliest event reported):May 26, 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
Share Purchase Agreement
On May 26, 2021, Tempur Sealy International, Inc. (the "Company"), together with its indirectly wholly-owned subsidiary, Tempur Sealy (UK) Limited (the "Purchaser"), entered into a share purchase agreement, dated May 26, 2021 (the "Share Purchase Agreement"), with Project Dream S.à.r.l. and certain members of the management team (collectively, the "Sellers") and Dreams Topco Limited (the "Target"). Subject to the terms and conditions of the Share Purchase Agreement, the Purchaser has agreed to purchase the entire issued share capital of the Target and its direct and indirect subsidiaries (the "Transaction"), for an aggregate purchase price payable of approximately £340 million on a debt-free, cash-free basis, subject to certain adjustments for net debt and working capital as described in the Share Purchase Agreement.

Conditions to the Transaction

The parties' obligations to close the Transaction are subject to the receipt of applicable regulatory approval from the UK Financial Conduct Authority. The Share Purchase Agreement will terminate automatically if the closing condition is not satisfied on or before January 26, 2022.

Other Terms of the Transaction

The Sellers have given customary fundamental warranties in the Share Purchase Agreement, which are subject to certain limitations contained in the Share Purchase Agreement. The Sellers are subject to customary covenants under the Share Purchase Agreement including, among others, an obligation to carry on the Target's business in the ordinary course consistent with past practice in the period between signing of the Share Purchase Agreement and closing of the Transaction and not to take certain specified actions during that period.

The Company has agreed to guarantee the obligations of the Purchaser under the Share Purchase Agreement.

A copy of the Share Purchase Agreement is filed as Exhibit 10.1 to this Form 8-K and is incorporated herein by reference. The description of the Share Purchase Agreement in this report is a summary and is qualified in its entirety by the terms of the Purchase Agreement.

Amendment No. 4 to the Credit Agreement

On May 26, 2021 the Company, Tempur-Pedic Management, LLC (the "Additional Borrower") and certain subsidiaries of the Company (the "Subsidiary Guarantors") entered into an Amendment No. 4 (the "Amendment") to the Company's Amended and Restated Credit Agreement dated as of October 16, 2019 (as amended, supplemented or otherwise modified as of the effective date of the Amendment, including by the Amendment, the "Credit Agreement"), among several banks and other financial institutions party thereto and JPMorgan Chase Bank, N.A., as administrative agent.

The Amendment provides for an incremental delayed draw term loan in the aggregate principal amount of $300 million (the "Delayed Draw Term Loan"). The Delayed Draw Term Loan shall be drawn in a single drawing on or before the date that is 6-months after May 26, 2021. If drawn the maturity date of the Delayed Draw Term Loan will be October 16, 2024. Repayments and prepayments of the Delayed Draw Term Loan may not be reborrowed. The proceeds of the Delayed Draw Term Loan will be used for general corporate purposes and to pay fees and expenses in connection with the Amendment.

At the borrower's election, the Delayed Draw Term Loan will bear interest at either (i) a base rate plus an applicable margin or (ii) a Eurocurrency rate plus an applicable margin, subject to adjustment based on the Company's consolidated total leverage ratio. Once drawn, the Delayed Draw Term Loan will have the same terms and conditions as the Company's existing term loans under the Credit Agreement.

Certain of the Company's present and future domestic subsidiaries guarantee the obligations under the Delayed Draw Term Loan. The obligations under the Delayed Draw Term Loan are secured by a pledge of substantially all of the assets of the Company, the Additional Borrower and the subsidiary guarantors, subject to certain exceptions and exclusions.

The above description of the Amendment is not complete and is qualified in its entirety by reference to the full text of the Amendment, which is filed as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by reference.




Some of the lenders under the Credit Agreement and their affiliates have various relationships with the Company involving the provision of financial services, including other credit facilities with affiliates of the Company, cash management, investment banking, trust 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 under the subheading 'Amendment No. 4 to the Credit Agreement' is incorporated by reference into this Item 2.03.

Item 7.01 Regulation FD Disclosure

On May 27, 2021, Tempur Sealy International, Inc. released an updated investor presentation (the "Investor Presentation"). The Investor Presentation will be used from time to time in meetings with investors. A copy of the Investor Presentation is furnished herewith as Exhibit 99.3 and is incorporated into this Item 7.01 by reference.

The information disclosed pursuant to this Item 7.01 (including Exhibit 99.3) shall not be deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") or otherwise subject to the liability of that section and shall not be incorporated by reference into any registration statement or other document filed under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in any such filing.

Item 8.01. Other Events.

On May 27, 2021, the Company issued a press release announcing that it had entered into the Share Purchase Agreement and entered into an amendment to its credit agreement. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference.

On May 27, 2021, the Company issued a press release announcing a market update. A copy of the press release is attached as Exhibit 99.2 to this Current Report on Form 8-K and incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
Number
Description
10.1*
10.2
99.1
99.2
99.3
104Cover page interactive data file (embedded within the Inline XBRL document).
*
Certain portions of this exhibit have been redacted pursuant to Item 601(b)(10)(iv) of Regulation S-K. The Company agrees to furnish supplementally an unredacted copy of the exhibit to the Securities and Exchange Commission upon request.





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:  May 27, 2021
Tempur Sealy International, Inc.
By:/s/ Bhaskar Rao
Name:Bhaskar Rao
Title:Executive Vice President & Chief Financial Officer






























Document



Certain identified information in this Exhibit has been redacted as it is both 1) immaterial and 2) the type of information that the Registrant customarily treats as private and confidential. Redacted information is indicated with [***].

Execution Version

Date: 26 May 2021



SHARE PURCHASE AGREEMENT
relating to
DREAMS TOPCO LIMITED

between
THE INSTITUTIONAL SELLER

and

THE MANAGEMENT SELLERS
and
the Purchaser
and
the GUARANTOR










Table of Contents

Page

1.     Definitions and Interpretation........................................................................................ 1
Definitions..........................… .......................................................................................... 1
Interpretation..................................................................................................................... 13
2.     Sale and purchase......................................................................................................… 15
Agreement to sell and purchase........................................................................................ 15
Waiver of pre-emption rights............................................................................................ 15
3.     Consideration................................................................................................................. 15
Amount............................................................................................................................. 15
Estimated Consideration................................................................................................... 16
Settlement of Consideration.............................................................................................. 16
4.     Condition to Completion.........................................................................................….. 17
5.     Period before Completion............................................................................................. 19
6.     Completion...................................................................................................................... 21
Date and place................................................................................................................... 21
Notification of Estimated Consideration.......................................................................... 22
Completion arrangements................................................................................................. 22
Breach of completion obligations..................................................................................... 22
7.     Warranties and undertakings....................................................................................... 23
Institutional Seller’s warranties........................................................................................ 23
Management Sellers’ warranties....................................................................................... 24
Purchaser’s warranties...................................................................................................... 25
Guarantor’s warranties...................................................................................................... 26
8.    . Limitation of liability.................................................................................................... 28
Monetary limit.................................................................................................................. 28
Notice of claims................................................................................................................ 28
Contingent Liabilities........................................................................................................ 29
Purchaser actions.............................................................................................................. 29
Mitigation.......................................................................................................................... 29
Consequential losses etc................................................................................................... 29
No double recovery........................................................................................................... 29
Recovery from third parties.............................................................................................. 30
Fraud................................................................................................................................. 30
Withdrawal and settlement of Seller Claims.................................................................... 30
9.     Tax information............................................................................................................. 31
10.     Purchaser’s guarantee................................................................................................... 31
11.     Non-solicitation covenant.............................................................................................. 32
12.     Announcements and confidentiality............................................................................. 32
Announcements................................................................................................................. 32
Confidentiality.................................................................................................................. 33
13.     Notices............................................................................................................................. 35
Service of notices.............................................................................................................. 35
14.     General............................................................................................................................ 37
Management Sellers’ Representative................................................................................ 37
Further assurances............................................................................................................. 38



Termination....................................................................................................................... 38
Costs.................................................................................................................................. 39
Taxes................................................................................................................................. 39
Assignment....................................................................................................................... 39
Variation........................................................................................................................... 41
Rights of third parties........................................................................................................ 41
Entire agreement............................................................................................................... 41
Inconsistency..................................................................................................................... 42
Remedies........................................................................................................................... 42
Waiver............................................................................................................................... 42
Severance.......................................................................................................................... 42
Counterparts and duplicates.............................................................................................. 42
Governing law................................................................................................................... 43
Jurisdiction........................................................................................................................ 43
Agent for service of process............................................................................................. 43

Schedule 1 The Sellers................................................................................................................ 45
Schedule 2 Conduct of Business prior to Completion............................................................. 47
Schedule 3 Completion Obligations.......................................................................................... 50
Schedule 4 Effective Time Statements...................................................................................... 53
Schedule 5 Accounting Policies................................................................................................. 59

Agreed Form Documents

1.    Announcements
2.    Employee Notification
3.    Deed of Adherence
4.    Voting PoA
5.    Lost Share Certificate Indemnity
6.    Resignation Letter




Date: 26 May 2021
PARTIES
(1)
PROJECT DREAM S.À R.L., a private limited liability company (société à responsabilité limitée) established and existing under the laws of Luxembourg, having its registered office at 15, Boulevard Friedrich Wilhelm Raiffeisen, L-2411 Luxembourg, Grand Duchy of Luxembourg, and registered with the Luxembourg Trade and Companies Register under number B 170267 (the “Institutional Seller”);
(2)
THOSE PERSONS whose details are set out in part 1 of Schedule 1 (The Sellers) (together “Management Sellers” and each a “Management Seller”);
(3)
TEMPUR SEALY (UK) LIMITED, a private company limited by shares incorporated under the laws of England and Wales, with company number 13390355 and having its registered office at Tempur House, Caxton Point, Printing House Lane, Hayes, Middlesex UB3 1AP (the “Purchaser”); and
(4)
TEMPUR SEALY INTERNATIONAL, INC., a corporation established and existing under the laws of Delaware, with registration number 3565036 and having its registered office at c/o Cogency Global Inc., 850 New Burton Road, Suite 201, Dover, DE 19904, United States of America (the “Guarantor”).
Together, the Institutional Seller and the Management Sellers are the “Sellers” and each is a “Seller”.
INTRODUCTION
(A)    Each Seller has agreed to sell the Shares held by that Seller and to assume the obligations imposed on that Seller under this Agreement.
(B)    The Purchaser has agreed to purchase the Shares and to assume the obligations imposed on the Purchaser under this Agreement.
(C)    The Guarantor has agreed to guarantee the Purchaser’s obligations under this Agreement.
AGREEMENT
1    Definitions and Interpretation
Definitions
1.1    In this Agreement, unless the context requires otherwise, the capitalised terms set out below have the following meanings:



£
Pounds Sterling, being the lawful currency of the United Kingdom of Great Britain and Northern Ireland;
$
United States Dollars, being the lawful currency of the United States of America;
Accounting Policies
the accounting policies set out in part 2 of Schedule 5 (Accounting Policies);
Accounts
(i) the consolidated, audited balance sheet, statement of comprehensive income, statement of changes in equity and cash flow statement of the Group (including any notes thereon) as at, and for the 12 months ended, 24 December 2020 prepared under UK GAAP; and
(ii) the audited balance sheet, statement of comprehensive income and statement of changes in equity of each of the individual Group Companies (including any notes thereon) as at, and for the 12 months ended, 24 December 2020 prepared under UK GAAP;
Actual Net Debt Amount
an amount equal to: (i) the aggregate amount of Debt owed by the Group Companies; minus (ii) the aggregate amount of Cash held by or on behalf of the Group Companies, in each case as at the Effective Time, as set out in the Actual Net Debt Statement and calculated in accordance with parts 1 and 2 of Schedule 5 (Accounting Policies), but excluding any item or amount to the extent included or taken into account in the calculation of the Actual Working Capital Amount. For the avoidance of doubt, the Actual Net Debt Amount will be expressed as a positive number if the amount of Debt exceeds the amount of Cash or as a negative number if the amount of Cash exceeds the amount of Debt;
Actual Net Debt Statement
a statement (in the form contemplated by part 4 of Schedule 5 (Accounting Policies)) setting out the Actual Net Debt Amount, as agreed or determined in accordance with Schedule 4 (Effective Time Statements);
Actual Working Capital Amount
the aggregate amount of net working capital of the Group accounted for in the line items set out in column I (entitled “Actual Working Capital Amount”) in part 3 of Schedule 5 (Accounting Policies), as at the Effective Time, as set out in the Actual Working Capital Statement and calculated in accordance with parts 1 and 2 of Schedule 5 (Accounting Policies), but excluding any item or amount to the extent included or taken into account in the calculation of the Actual Net Debt Amount. For the avoidance of doubt, the Actual Working Capital Amount may be a positive (net asset) or negative (net liability) number;



Actual Working Capital Statement
a statement (in the form contemplated by part 5 of Schedule 5 (Accounting Policies)) setting out (i) the Actual Working Capital Amount and (ii) the Working Capital Excess or the Working Capital Shortfall (as applicable), as agreed or determined in accordance with Schedule 4 (Effective Time Statements);
this “Agreement
this share purchase agreement, including the Introduction, the Schedules and the Annexures, as amended or restated from time to time;
All Seller Warranties
has the meaning given in Clause 8.14;
Announcements
the announcements in the agreed form relating to the Transaction;
Articles
the articles of association of the Company from time to time;
Balancing Amount
an amount equal to the sum of:
(i) the Working Capital Shortfall (expressed as a negative number) or the Working Capital Excess (expressed as a positive number); and
(ii) the Net Debt Shortfall (expressed as a positive number) or the Net Debt Excess (expressed as a negative number);
Business Day
any day that is not a Saturday or Sunday or a public holiday in London, England, Luxembourg, the Grand Duchy of Luxembourg or New York, United States of America;
Cash
the aggregate amount accounted for in the line items set out in column H (entitled “Cash”) in part 3 of Schedule 5 (Accounting Policies);
Company
Dreams Topco Limited, a private limited company incorporated and registered in England with registered number 08428337 whose registered office is at 14 Knaves Beech Business Centre, Davies Way, Loudwater, High Wycombe, Buckinghamshire HP10 9YU;
Completion
completion of the sale and purchase of the Shares in accordance with Clause 6;
Completion Date
the date on which Completion is to take place, determined in accordance with Clause 6.1(a);
Condition
has the meaning given in Clause 4.1;



Confidentiality Agreement
the confidentiality agreement dated 3 March 2017 and made between the Institutional Seller, the Company and the Guarantor (as amended pursuant to an exclusivity letter entered into between the Institutional Seller, the Company and the Guarantor dated 15 April 2021);
Consideration
has the meaning given in Clause 3.1;
Covered Person
has the meaning given in Clause 7.11;
COVID-19
the outbreak of the Coronavirus disease 2019 (COVID-19) declared by the World Health Organization as a Public Health Emergency of International Concern (as defined by the World Health Organization) on 30 January 2020 and as a pandemic on 11 March 2020;
COVID-19 Circumstances
any and all measures taken by any Governmental Entity after the date of this agreement in direct response to COVID-19, including the issuance of quarantine and confinement orders, lockdowns, embargoes and travel restrictions or general published COVID-19 related guidelines, whether at an international, national, regional, local or other level;
Data Room
the documents and other information contained in the electronic data room hosted by Datasite known as “Bloom” made available to the Purchaser and its representatives as at 6.55 p.m. on 24 May 2021, a USB copy of which has been provided to the Purchaser on or before the date of this Agreement;
Debt
the aggregate amount accounted for in the line items set out in column I (entitled “Debt”) in part 3 of Schedule 5 (Accounting Policies);
Deed of Release
a deed of release in respect of all mortgages, charges, debentures, assignments or other security and guarantees granted or entered into by any Group Company in respect of the Existing Facilities (including pursuant to the debentures dated 1 April 2015 and 20 June 2019, respectively);
Disclosed
has the meaning given to it in the Management Warranty Deed;
Effective Time
immediately before Completion;
Effective Time Statements
the Actual Net Debt Statement and the Actual Working Capital Statement;
Employee
has the meaning given to it in the Management Warranty Deed;



Employee Notification
the notification to the Group’s employees in the agreed form relating to the Transaction;
Employee Representative
any employers’ or trade association of which the Company is a member, or any trade union, staff association, trade association, works council or other body representing Employees;
Encumbrance
all security interests, mortgages, charges, options, equities, claims, liens, hypothecations, retentions of title or other third party rights (including rights of pre-emption or rights of first refusal) of any nature whatsoever or any agreement, arrangement or obligation to create any of the foregoing;
Entire Capitalisation Warranties
has the meaning given in Clause 8.14;
Estimated Consideration
an amount equal to the aggregate of:
(i) £340,000,000; less
(ii) the Estimated Net Debt Amount; plus
(iii) the Estimated Working Capital Shortfall (expressed as a negative number) or the Estimated Working Capital Excess (expressed as a positive number);
Estimated Net Debt Amount
the Sellers’ good faith estimate of the Actual Net Debt Amount as set out in the Estimated Net Debt Statement;
Estimated Net Debt Statement
a statement (in the form contemplated by part 4 of Schedule 5 (Accounting Policies)) setting out the Estimated Net Debt Amount, together with reasonably detailed information as to how each item in the Estimated Net Debt Statement has been calculated;
Estimated Working Capital Amount
the Sellers’ good faith estimate of the Actual Working Capital Amount as set out in the Estimated Working Capital Statement;
Estimated Working Capital Excess
the amount (if any) by which the Estimated Working Capital Amount exceeds (or is less negative than) the Working Capital Target;
Estimated Working Capital Shortfall
the amount (if any) by which the Estimated Working Capital Amount is less than (or more negative than) the Working Capital Target;



Estimated Working Capital Statement
a statement (in the form contemplated by part 5 of Schedule 5 (Accounting Policies)) setting out (i) the Estimated Working Capital Amount and (ii) the Estimated Working Capital Excess or the Estimated Working Capital Shortfall (as applicable), together with reasonably detailed information as to how each item in the Estimated Working Capital Statement has been calculated;
Exchange Rate
in respect of any amount to be converted from £ into $ pursuant to Clause 3.7, the following exchange rate:
£ (GBP) = 1
$ (USD) = 1.4023
Existing Facilities
the facilities provided to members of the Group under the Existing Facilities Agreement;
Existing Facilities Agreement
the facilities agreement originally dated 1 April 2015 as amended on 1 December 2016 and amended and restated on 20 June 2019 and as further amended and/or amended and restated from time to time between, among others, the Company as parent and Barclays Bank PLC as agent;
Existing Facilities Pay-Off Amount
the amount required on Completion to discharge all amounts owed by the Company and any other Group Company under the Existing Facilities (including principal, interest, gross-up obligations or other tax payments, penalties, break fees, pre-payment fees, professional advisers costs, close-out amounts and any related fees, costs and expenses of any nature) and any associated hedging arrangements and to release all guarantees and security in relation to the Existing Facilities and any hedging arrangements (inclusive of any prepayment costs or any prepayment premia);
Facility Agent
has the meaning given to the term “Agent” as defined in the Existing Facilities Agreement;
FCA
the Financial Conduct Authority, or any successor authority or authorities, empowered to perform any regulatory functions in the United Kingdom under FSMA from time to time;
FCA Regulated Company
Dreams Limited;
FSMA
the United Kingdom’s Financial Services and Markets Act 2000 (as amended);
Fundamental Obligation
each obligation of a Party listed in Schedule 3 (Completion Obligations) that is identified as such in that Schedule;



Governmental Entity
any supra national, national, state, municipal or local government (including any subdivision, court, administrative agency or commission or other authority thereof) or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority, including the European Union and the FCA;
Group
the Company and all of the Group Companies, taken as a whole;
Group Capitalisation Warranties
has the meaning given in Clause 8.14;
Group Companies
the Company and each of its subsidiaries, each being a “Group Company”;
Guaranteed Obligations
has the meaning given in Clause 10.1;
Guarantor
has the meaning given in “Parties”;
Incentive Scheme
any: (i) share or share-based incentive scheme; (ii) share purchase or ownership scheme; (iii) employee benefit trust or similar arrangement; or (iv) profit sharing, bonus, commission or other cash-based incentive scheme or arrangement, which either relates to shares in a Group Company, is sponsored or maintained by a Group Company, or in respect of which any Employee or their dependants have outstanding entitlements;
Institutional Seller’s Group
the Institutional Seller, its Related Persons and any fund or other investment vehicle managed and/or advised by any adviser or manager of the Institutional Seller and/or any of its Related Persons, and any general partner, trustee, nominee, operator, arranger or manager of, or investment adviser to, the Institutional Seller or of or to any Related Person of the Institutional Seller, or of or to any fund or investment vehicle managed and/or advised by any investment adviser or manager of the Institutional Seller and/or any of its Related Persons;
Institutional Seller’s Solicitors
Kirkland & Ellis International LLP of 30 St Mary Axe, London EC3A 8AF;
Intellectual Property Rights
has the meaning given to it in the Management Warranty Deed;
Long Stop Date
26 January 2022;
Management Seller and Management Sellers
have the meanings given in “Parties”;



Management Sellers’ Representative
Michael Logue, or any replacement (being a Management Seller) appointed pursuant to Clause 14.4;
Management Sellers’ Solicitors
Travers Smith LLP of 10 Snow Hill, London EC1A 2AL;
Management Warranty Deed
the management warranty deed executed and delivered as a deed dated on or about the date of this Agreement by the Management Sellers in favour of the Purchaser and the Guarantor;
Material Contract
has the meaning given to it in the Management Warranty Deed;
Monthly Accounting Period
a monthly accounting period of the Group, as set out in the Group’s financial calendar for 2021 and 2022 in part 6 of Schedule 5 (Accounting Policies);
Net Debt Excess
the amount (if any) by which the Actual Net Debt Amount exceeds (or is less negative than) the Estimated Net Debt Amount;
Net Debt Shortfall
the amount (if any) by which the Actual Net Debt Amount is less than (or more negative than) the Estimated Net Debt Amount;
Normal Business Hours
has the meaning given in Clause 13.3;
Original Party
has the meaning given in Clause 14.16;
Owned Intellectual Property
has the meaning given to it in the Management Warranty Deed;
Payment Statement
a statement setting out the total Consideration, as agreed and determined in accordance with Schedule 4 (Effective Time Statements);
Pre-Contractual Statement
has the meaning given in Clause 14.21(b);
Process Agent
has the meaning given in Clause 14.36;
Purchaser’s Group
the Purchaser and its Related Persons (including, following Completion, the Group Companies);
Purchaser’s Solicitors
Cleary Gottlieb Steen & Hamilton LLP of 2 London Wall, London EC2Y 5AU;
Reduced Notice Period
the meaning given in Clause 5.3(b);



Related Person
(i) in the case of a body corporate, any subsidiary or holding company of that body corporate and any subsidiary of any such holding company, in each case from time to time;
(ii) in the case of an individual, any spouse and any lineal descendant by blood or adoption of that individual or any person(s) acting in the capacity of trustee(s) of a trust of which that individual is the settlor or that individual and that individual’s spouse and/or lineal descendants are the sole beneficiaries; and
(iii) in the case of a limited partnership, any nominee or trustee of the limited partnership, the partners in that limited partnership or their nominees, any investment manager or investment adviser to the limited partnership, any parent undertaking or subsidiary undertaking of that investment manager or investment adviser and any other investment fund managed or advised by any such person or any investor in any fund that directly or indirectly holds interests in the limited partnership,
provided that, for the purposes of this Agreement, the Group Companies shall not be deemed Related Persons of any Seller or of any Seller’s Related Persons;
Relevant Seller Proportion
means the proportion applicable to each Seller set out opposite that Seller’s name in column (4) of Schedule 1 (The Sellers);
Relief
includes, unless the context otherwise requires, any loss, allowance, credit, deduction, exemption or set off in respect of any Tax, or any right to or actual repayment or refund of or saving of Tax (including any repayment, supplement, fee or interest in respect of any Tax);
Reporting Accountants
has the meaning given in paragraph 9 of Part 1 of Schedule 4 (Effective Time Statements);
Retirement Benefits
means any of the benefits described in section 150(1) of the Finance Act 2004 or section 255 of the Pensions Act 2004;
Run-off Policy
has the meaning given to it in Clause 7.11;
Securityholders’ Deed
the securityholders’ deed dated 6 May 2015 entered into between (i) the Company, (ii) the Institutional Seller and (iii) the Management Sellers relating to their respective rights and obligations as securityholders of the Company (as amended and restated on 23 March 2017);
Seller” and “Sellers
have the meanings given to them in “Parties”;



Seller Claim
any claim, proceeding, suit or action by the Purchaser against any Seller, or any member of the Institutional Seller’s Group, in respect of any breach or non-performance, as applicable, of a covenant, undertaking or warranty given pursuant to this Agreement;
Seller’s Disagreement Notice
has the meaning given to it in paragraph 4(b) of Part 1 of Schedule 4 (Effective Time Statements);
Senior Employee
has the meaning given to it in the Management Warranty Deed;
Shares
2,000 A ordinary shares of £0.00001 each and 111 B ordinary shares of £0.0001 each in the capital of the Company, together comprising the entire issued and to be issued share capital of the Company;
Substitute Party
has the meaning given in Clause 14.16;
Surviving Provisions
Clauses 1, 4.7, 7.9, 8, 10, 12.3 to 12.6, 13, 14.1 to 14.4 and 14.8 to 14.40;
Tax” or “Taxation
any form of tax, levy, impost, duty, charge, employer social security contribution or other governmental charge (national or local) of whatever nature, whenever and wherever imposed, which is collected or assessed by, or payable to, a Tax Authority or any other person as a result of any enactment relating to tax, together with all related fines, penalties, interest, costs, charges and surcharges, and in each case whether payable directly or imposed by way of a withholding or deduction and in respect of any person whether their liability for the same is a primary or secondary liability;
Tax Authority
any taxing or other authority competent to impose any liability in respect of Taxation or responsible for the administration or collection of Taxation;
Transaction
the transactions contemplated by the Transaction Documents;
Transaction Documents
this Agreement, the Management Warranty Deed, each document in the agreed form and any other document entered into or to be entered into pursuant to this Agreement;
UK GAAP
Financial Reporting Standard 102, The Financial Reporting Standard applicable in the UK and Republic of Ireland as issued by the Financial Reporting Council;



VAT
within the European Union, any Tax levied pursuant to EC Directive 2006/112/EC (as amended from time to time) and any other Tax of a similar nature levied in substitution for or in addition to such Tax in any member state of the European Union, and outside the European Union, any other Tax of a similar nature wherever imposed (including value added tax levied pursuant to the United Kingdom Value Added Tax Act 1994);
Warranties
has the meaning given to it in the Management Warranty Deed;
Working Capital Excess
the amount (if any) by which the Actual Working Capital Amount exceeds (or is less negative than) the Estimated Working Capital Amount;
Working Capital Shortfall
the amount (if any) by which the Actual Working Capital Amount is less than (or more negative than) the Estimated Working Capital Amount; and
Working Capital Target
[***]
1.2    References to the “Parties” are to the parties to this Agreement, and each is a “Party”.
1.3    References to “Clauses” are to the clauses of this Agreement.
1.4    References to the “Introduction” and the “Schedules” are to the introduction and schedules to this Agreement, which form part of this Agreement and have the same force and effect as if set out in the body of this Agreement.
1.5    A document expressed to be an “Annexure” means a document a copy of which has been identified as such and initialled by or on behalf of the Sellers and the Purchaser or agreed by email on their behalf by the Institutional Seller’s Solicitors, the Management Sellers’ Solicitors and the Purchaser’s Solicitors.
1.6    Where any capitalised term is defined within a particular Clause in the body of this Agreement, that term shall bear the meaning ascribed to it in that Clause wherever it is used in this Agreement.
1.7    Wherever, under the terms of this Agreement, the Management Sellers are entitled or obliged to exercise or enforce any right or discretion, or to give any direction, consent or notice, or receive any notice or document, save as otherwise provided for, such right or discretion may be validly exercised, and such direction, consent or notice may be validly given and such notice or document shall be validly received by the Management Sellers’ Representative, on behalf of all of the Management Sellers, and each of the Management Sellers shall be bound by and shall not seek to challenge and/or overturn any such action or dispute the valid service of such notice or document.



Interpretation
1.8    The table of contents and headings to Clauses and Schedules are included for ease of reference only, and are not to affect the interpretation of this Agreement.
1.9    In this Agreement, unless expressly stated otherwise:
(a)    the words “include” or “including” (or any similar term) are not to be construed as implying any limitation;
(b)    general words shall not be given a restrictive meaning by reason of the fact that they are preceded or followed by words indicating a particular class of acts, matters or things;
(c)    words indicating gender shall be treated as referring to the masculine, feminine or neuter as appropriate;
(d)    the singular shall include the plural and vice versa;
(e)    a reference to a statute, statutory provision or subordinate legislation (“legislation”) refers to such legislation as amended and in force from time to time and to any legislation that (either with or without modification) re-enacts, consolidates or enacts in rewritten form any such legislation, provided that as between the Parties no such amendment, re-enactment or modification shall apply for the purposes of this Agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or would otherwise adversely affect the rights of, any Party;
(f)    any reference to any document other than this Agreement is a reference to that other document as amended, varied, supplemented, or novated (in each case, other than in breach of the provisions of this Agreement) at any time;
(g)    a reference to a document “in the agreed form” means a form of document signed by or on behalf of each Party for the purposes of identification or agreed by email on their behalf by the Institutional Seller’s Solicitors, the Management Sellers’ Solicitors and the Purchaser’s Solicitors;
(h)    references to the time of day are to London time;
(i)    a reference to something being “in writing” or “written” includes any mode of representing or reproducing words in visible form that is capable of reproduction in hard copy form, including words transmitted by email but excluding any other form of electronic or digital communication;
(j)    any reference to a “person” includes any individual, body corporate, trust, partnership, joint venture, unincorporated association or governmental, quasi-governmental, judicial or regulatory entity (or any department, agency or political



sub-division of any such entity), in each case whether or not having a separate legal personality;
(k)    any reference to a “holding company” or a “subsidiary” means a “holding company” or “subsidiary” as defined in section 1159 of the Companies Act 2006, save that a company shall be treated for the purposes of the membership requirement contained in sections 1159(1)(b) and (c) as a member of another company even if its shares in that other company are registered in the name of (i) its nominee or (ii) another person (or its nominee) by way of security or in connection with the taking of security. Any reference to an “undertaking” shall be construed in accordance with section 1161 of the Companies Act 2006 and any reference to a “parent company” or a “subsidiary undertaking” means respectively a “parent company” or “subsidiary undertaking” as defined in section 1162 of the Companies Act 2006, save that an undertaking shall be treated for the purposes of the membership requirement in sections 1162(2)(b) and (d) and section 1162(3)(a) as a member of another undertaking even if its shares in that other undertaking are registered in the name of (i) its nominee or (ii) another person (or its nominee) by way of security or in connection with the taking of security;
(l)    in relation to a limited liability partnership, references to “directors” or “employees” shall be taken as a reference to the members and (where applicable) employees of that limited liability partnership;
(m)    save as otherwise expressly and specifically stated, a procuring obligation where used in the context of: (i) the Institutional Seller shall, in relation to a Group Company, mean solely that the Institutional Seller shall (A) exercise its voting rights and use any and all powers vested in it from time to time in its capacity as a member of the Company together with such contractual rights as it may be entitled to exercise in respect of the Group and (B) direct that any director of any Group Company appointed by any member of the Institutional Seller’s Group shall exercise shall exercise his or her voting rights and use any and all powers vested in him or her in his or her capacity as a director of such Group Company (subject to his or her fiduciary and statutory duties as a director); and (ii) the Management Sellers (or any one or more of them) shall, in relation to a Group Company, mean solely that the relevant Management Seller shall exercise his or her voting rights and use any and all powers vested in him or her in his or her capacity as a director and/or employee of the Group Company (where applicable) (subject to his or her fiduciary and statutory duties as a director) together with such contractual rights as he or she may be entitled to exercise in respect of the Group;
(n)    “to the extent that” means “to the extent that” and not solely “if”, and similar expressions shall be construed in the same way; and
(o)    any reference to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or



thing shall, in respect of any jurisdiction other than England, be deemed to include what most nearly approximates in that jurisdiction to the English legal term.
1.10    The warranties, representations and obligations of each Seller under this Agreement are several and not (i) joint or (ii) joint and several. No claim may be made against any Seller in respect of any breach of this Agreement by any other Seller or such other Seller’s Related Persons.
2    Sale and purchase
Agreement to sell and purchase
2.1    On and subject to the terms of this Agreement, each Seller shall sell the Shares for which it is identified as the Seller in Schedule 1 (The Sellers) with full title guarantee free from Encumbrances as at Completion, and the Purchaser shall purchase the Shares, together with all rights attached or accruing to the Shares as at Completion.
Waiver of pre-emption rights
2.2    Provided that such waiver shall be effective only as of Completion, each Seller hereby irrevocably waives any and all rights in respect of its Shares (other than, for the avoidance of doubt, any rights to its, his or her Relevant Seller Proportion of any Balancing Amount payable by the Purchaser pursuant to Clause 3.4(b)) that may have been conferred on such Seller by the Articles or otherwise, including:
(a)    any rights of redemption, pre-emption, first refusal or transfer;
(b)    any rights relating to the terms of transfer or the consideration, interest or dividends declared, made or paid or agreed to be made or paid for or on any Shares on or after Completion; and
(c)    any rights to acquire any Shares,
and shall, on or before Completion, procure the waiver of any such rights held by any other person.
2.3    Neither the Sellers nor the Purchaser shall be obliged to complete the sale and purchase of the Shares unless the sale and purchase of all of the Shares is completed simultaneously in accordance with the terms of this Agreement.
3    Consideration
Amount
3.1    Subject to Clause 3.6, the total consideration for the purchase of the Shares under this Agreement (the “Consideration”) shall be the amount equal to the aggregate of:



(a)    £340,000,000; less
(b)    the Actual Net Debt Amount; and
(c)    (i) plus the amount (if any) by which the Actual Working Capital Amount exceeds (or is less negative than) the Working Capital Target or (ii) less the amount (if any) by which the Actual Working Capital Amount is less than (or more negative than) the Working Capital Target.
3.2    The Sellers agree that the Consideration shall be apportioned between the Shares in accordance with the Articles, but the Purchaser shall not be concerned with such apportionment.
Estimated Consideration
3.3    The Estimated Consideration shall be paid or satisfied in accordance with Clause 6.
Settlement of Consideration
3.4    Within five Business Days after (and excluding) the date on which the Payment Statement and the Effective Time Statements are agreed or determined in accordance with Schedule 4 (Effective Time Statements), the following payments shall be made:
(a)    if the Balancing Amount is zero, no payment shall be made by either the Sellers or the Purchaser;
(b)    if the Balancing Amount is a positive number, the Purchaser shall pay to each Seller an amount equal to such Seller’s Relevant Seller Proportion of the Balancing Amount; or
(c)    if the Balancing Amount is a negative number, each Seller shall pay to the Purchaser an amount equal to such Seller’s Relevant Seller Proportion of the Balancing Amount (for these purposes expressed as a positive amount).
3.5    Any amount to be paid under Clause 3.3 (and paragraph 5(a) of Schedule 3 (Completion Obligations)) or Clause 3.4 shall be made in accordance with Clause 3.7 or Clause 3.8 (as applicable) by telegraphic transfer to:
(a)    in the case of the Institutional Seller’s Relevant Seller Proportion of such amount, such account as may be notified by the Institutional Seller to the Purchaser at least five clear Business Days prior to the due date for payment;
(b)    in the case of all of the Management Sellers’ respective Relevant Seller Proportions of such amount, such account as may be notified by the Institutional Seller to the Purchaser at least five clear Business Days prior to the due date for payment; and



(c)    in the case of payments to the Purchaser, account details of which shall be notified by the Purchaser to the Sellers at least five clear Business Days prior to the due date for payment,
and such payment shall be an absolute discharge to the person making the payment who shall not be concerned with the subsequent application of the amount paid.
3.6    If any payment is to be made by any Seller to the Purchaser in respect of any Seller Claim or any claim, proceeding, suit or action under the Management Warranty Deed, or by the Purchaser to any Seller in respect of any claim, proceeding, suit or action under this Agreement, the payment shall, to the extent possible, be made by way of adjustment of the Consideration paid by the Purchaser for the relevant Seller’s Shares under this Agreement, which shall be deemed to have been reduced or increased (as appropriate) by the amount of such payment.
Payment
3.7    Payment by or on behalf of (a) the Purchaser to the Institutional Seller in respect of the Institutional Seller’s Relevant Seller Proportion of the Estimated Consideration and (b) the Purchaser to the Institutional Seller in respect of the Institutional Seller’s Relevant Seller Proportion (or vice versa) of the Balancing Amount (if any) will in each case be made in $. For these purposes, the amount of the Institutional Seller’s Relevant Seller Proportion of the Estimated Consideration and the Balancing Amount (if any), in each case calculated in accordance with the respective definitions set out in Clause 1.1, will be converted from £ into $ at the Exchange Rate.
3.8    Payment by or on behalf of (a) the Purchaser to the Management Sellers in respect of all of the Management Sellers’ respective Relevant Seller Proportions of the Estimated Consideration and (b) the Purchaser to the Management Sellers in respect of all of the Management Sellers’ respective Relevant Seller Proportions (or vice versa) of the Balancing Amount (if any) will in each case be made in £.
3.9    Within five Business Days from and excluding the later of (a) date of receipt of any payments pursuant to Clause 3.8 and (b) the date on which the Management Sellers’ Representative notifies the Institutional Seller of the account details for the onward payments, the Institutional Seller shall make such onward payments to the Management Sellers and/or to the Management Sellers’ advisers as the Management Sellers’ Representative may direct in writing, and such onward payments shall be an absolute discharge of the Institutional Seller’s obligation to remit the Management Sellers’ respective Relevant Seller Proportions of the Estimated Consideration and/or the Balancing Amount due to the Sellers (if any) to the Management Sellers. For the avoidance of doubt, the Sellers acknowledge and agree that the Purchaser shall not, in accordance with Clause 3.4, be concerned with any payment to be made pursuant to this Clause 3.9.



3.10    The Management Sellers acknowledge and agree that the Institutional Seller shall not under any circumstances be liable to account for any Taxes payable by a Management Seller in respect of his or her Relevant Seller Proportion of the Estimated Consideration and/or any Balancing Amount that may be due to the Sellers pursuant to Clause 3.4.
4    Condition to Completion
4.1    Completion shall be conditional on the FCA, in respect of the Purchaser and any other person acquiring or increasing control over the FCA Regulated Company by virtue of the Transaction, having given notice for the purposes of sections 189(4)(a) or 189(7) of FSMA that it has determined to approve such acquisition of control or being treated, by virtue of section 189(6) of FSMA, as having approved such acquisition of control (the “Condition”), provided that the Condition shall not be deemed to have been satisfied where compliance with the conditions in any notice by the FCA in accordance with section 189(7) of FSMA would be materially detrimental (in the reasonable opinion of the Purchaser) to the Group, taken as a whole, or to the Purchaser or any of its Related Persons.
For the purposes of this Clause 4:
(i)    references to FSMA shall be read, where applicable, as subject to the provisions of the Financial Services and Markets Act 2000 (Controller) (Exemptions) Order 2009 (SI 2009/774); and
(ii)    “acquiring or increasing control” is determined in accordance with sections 181 and 182 of FSMA.
4.2    The Purchaser shall, at its own cost, including the payment of any applicable filing fees, use its best endeavours to ensure that the Condition is fulfilled promptly after the date of this Agreement and in any event prior to the Long Stop Date including using its best endeavours to satisfy the Condition, including making or procuring the making of all notifications and filings to satisfy the Condition. Without prejudice to the generality of this Clause 4.2, the Purchaser shall in any event:
(a)    have primary responsibility for obtaining all consents, approvals or actions of any Governmental Entity which are required to satisfy the Condition and shall use best endeavours for that purpose (including making appropriate submissions, notifications and filings within three Business Days after the date of this Agreement);
(b)    make and progress all such notifications and filings with the relevant Governmental Entities with all due diligence and in accordance with any and all applicable time limits;



(c)    provide promptly all information which is requested or required by a Governmental Entity and in any event in accordance with any applicable time limits;
(d)    promptly notify the Institutional Seller and the Institutional Seller’s Solicitors (and provide copies or, in the case of non-written communications, details) of any material communications with or from any Governmental Entity provided that, insofar as any such information is competitively sensitive, such information shall be provided on an outside counsel-to-counsel, confidential basis;
(e)    provide the Institutional Seller’s Solicitors with a draft of all submissions, notifications, filings and other material communications to be submitted to any Governmental Entity including any supporting documentation or information requested by the Institutional Seller’s Solicitors, provided that the Purchaser shall not be required to provide any business secrets, at such time prior to submission as will afford the Institutional Seller’s Solicitors a reasonable opportunity to provide comments, and take account of any comments of the Institutional Seller’s Solicitors on such drafts prior to their submission; and
(f)    regularly update and review with the Institutional Seller and the Institutional Seller’s Solicitors the progress of any notifications or filings to any Governmental Entity.
4.3    The Sellers shall promptly provide the Purchaser and any Governmental Entity with any information and documents available to it which are reasonably required by the Purchaser to assist the Purchaser in fulfilling the Condition and/or responding to any request or inquiry from any Governmental Entity in connection with the Transaction to the extent such information is not contained in the materials made available to the Purchaser, including in the Data Room, and provided that insofar as any such information is competitively sensitive, such information shall be provided on an outside counsel-to-counsel, confidential basis.
4.4    The Sellers and the Purchaser shall each notify the other promptly upon, and in any event within one Business Day, of becoming aware that the Condition has been fulfilled, and shall promptly provide each other with copies of any relevant correspondence or notifications received from the relevant Governmental Entity evidencing the satisfaction of the Condition.
4.5    Without prejudice to any other rights of the Sellers, the Institutional Seller shall have the right to terminate this Agreement in the event that a notice has been given by the FCA stating that it objects to the acquisition of control of the FCA Regulated Company by the Purchaser or otherwise will not grant a clearance in respect of the Transaction.
4.6    If the Condition has not been satisfied by the Long Stop Date (or such later date as the Institutional Seller and the Purchaser may agree in writing provided notice of such agreement is given to the Management Sellers’ Representative), this Agreement shall



automatically terminate (other than the Surviving Provisions) unless otherwise agreed in writing between the Institutional Seller and the Purchaser (provided notice of such agreement is given to the Management Sellers’ Representative).
4.7    In the event that this Agreement is terminated pursuant to Clause 4.5, 4.6 or 6.4, no Party (nor any of their respective Related Persons) shall have any claim under this Agreement of any nature whatsoever against any other Party (or any of their respective Related Persons) except in respect of any rights and liabilities which have accrued before such termination or under any of the Surviving Provisions.
5    Period before Completion
5.1    Except as otherwise agreed in writing with the Purchaser, between the execution of this Agreement and Completion, each Seller shall procure (insofar as it is legally able) that the business of each Group Company is carried on only in the ordinary course consistent with past practice and that each Group Company complies with the obligations set out in Schedule 2 (Conduct of Business prior to Completion).
5.2    From the date of this Agreement until Completion, to the extent permitted by applicable law, the Sellers shall procure that the Purchaser is provided with copies of all information provided to the Company’s shareholders on a monthly basis, including the monthly management pack (including the monthly management accounts) for the Group, prepared in accordance with past practice, as soon as reasonably practicable after such information is available.
5.3    Between the date of this Agreement and the Completion Date, each Seller shall, and shall procure that each relevant member of the Group shall:
(a)    to the extent required, request a calculation of the Existing Facilities Pay-Off Amount;
(b)    use reasonable endeavours to seek to agree with the Majority Lenders (as defined in the Existing Facilities Agreement) a notice period that is as short as possible (but not less than five Business Days) in respect of the voluntary prepayment and/or cancellation of the Existing Facilities at Completion (if applicable, such reduced notice period being the “Reduced Notice Period”);
(c)    serve the Facility Agent under the Existing Facilities with a voluntary prepayment and/or cancellation notice in accordance with the terms of the Existing Facilities Agreement to enable the voluntary prepayment and/or cancellation of the Existing Facilities at Completion pursuant to Clause 6.3 and the release at Completion of all security and guarantees related to the Existing Facilities pursuant to the Deed of Release; and
(d)    obtain all information needed in respect of the execution of the Deed of Release, consult with the Purchaser with respect to the form and substance of the Deed of



Release (including, for the avoidance of doubt, by sharing with the Purchaser within a reasonable period of time before Completion any draft of the Deed of Release) and take into account the Purchaser’s reasonable comments on any such draft.
5.4    Clause 5.1 shall not operate so as to prevent or restrict any of the following on or prior to Completion:
(a)    any matter required by law or by regulation binding on any Seller or any member of the Group;
(b)    any matter or transaction Disclosed in the Disclosure Letter or the Disclosure Documents (as defined in the Management Warranty Deed);
(c)    the implementation of any transaction or the taking of any action expressly permitted or provided for by any Transaction Document;
(d)    the execution of an obligation existing at the date of this Agreement, to the extent disclosed to the Purchaser on or before the date of this Agreement; and/or
(e)    any matter which is reasonably undertaken by any Group Company in response to a genuine emergency or disaster situation (including a genuine emergency or disaster situation arising in response to COVID-19 and/or any COVID-19 Circumstances) with the intention of minimising any adverse effect thereof in relation to the Group.
5.5    The Sellers shall (i) notify the Purchaser as soon as reasonably practicable of any action taken or proposed to be taken as described in this Clause 5.4, (ii) provide to the Purchaser all such information as the Purchaser may reasonably request in connection therewith and (iii) use reasonable endeavours to consult with the Purchaser in respect of any such action, to the extent reasonably practicable in the circumstances. Any failure on the part of any Seller to comply with the provisions of this Clause 5.5 shall not result in any Seller losing the benefit of Clause 5.4, without prejudice to the Purchaser’s ability to make a claim in respect of any breach of this Clause 5.5.
5.6    The Sellers shall procure that, between the date of this Agreement and the date that is as soon as is reasonably practicable prior to Completion, the Company shall, to the extent permitted by applicable law, distribute to the Sellers an aggregate amount in cash to be determined in good faith by the Institutional Seller and the Management Sellers’ Representative (with a view to minimising to the extent practicable the Cash held by or on behalf of the Group Companies as at the Effective Time to the amount reasonably considered to be required by the Group Companies for their ongoing operations (including taking into account the amounts of customer deposits retained by the Group Companies)), and the Institutional Seller and the Management Sellers’ Representative shall consult in good faith with the Purchaser in respect of the amount reasonably considered to be required by the Group Companies for their ongoing operations



(including taking into account the amounts of customer deposits retained by the Group Companies). The Sellers shall procure that the Group Companies shall, to the extent permitted by applicable law, make such distributions as are necessary to enable the Company to effect such distributions.
6    Completion
Date and place
6.1    Completion shall take place at the offices of the Institutional Seller’s Solicitors at 30 St. Mary Axe, London EC3A 8AF:
(a)    if notice of satisfaction of the Condition is served in accordance with Clause 4.4 at least 11 Business Days (or, if shorter and subject to the successful agreement of a Reduced Notice Period pursuant to Clause 5.3(b), the number of Business Days that is equal to one Business Day more than Reduced Notice Period) prior to 1 July 2021, on 1 July 2021;
(b)    on the first Business Day of the Monthly Accounting Period following that in which notice of satisfaction of the Condition is served in accordance with Clause 4.4, provided that, if notice of satisfaction of the Condition is served fewer than 11 Business Days (or, if shorter and subject to the successful agreement of a Reduced Notice Period pursuant to Clause 5.3(b), the number of Business Days that is equal to one Business Day more than Reduced Notice Period) prior to such date, Completion shall take place on the first Business Day of the next Monthly Accounting Period; or
(c)    on such other date as the Institutional Seller and the Purchaser may agree in writing (provided notice of such agreement is given to the Management Sellers’ Representative),
but, in any event, no later than the first Business Day of the second Monthly Accounting Period following the Monthly Accounting Period in which the Long Stop Date falls.
Notification of Estimated Consideration
6.2    At least five Business Days prior to Completion, the Institutional Seller shall provide to the Purchaser (and the Management Sellers’ Representative):
(a)    an Estimated Net Debt Statement, an Estimated Working Capital Statement and its calculation (and allocation between the Sellers) of the Estimated Consideration (and such calculation and allocation, the Estimated Net Debt Statement and the Estimated Working Capital Statement shall, in the absence of manifest error, be binding on the Purchaser for the purposes of Clause 6.3); and
(b)    confirmation from the Facility Agent of the Existing Facilities Pay-Off Amount (together with the currency, payee and accounts details) and a copy of a duly



signed pay-off letter in respect of the Existing Facilities. The Institutional Seller shall consult with the Purchaser with respect to the form and substance of such pay-off letter (including, for the avoidance of doubt, by sharing with the Purchaser within a reasonable period of time before Completion any draft of such pay-off letter) and take into account the Purchaser’s reasonable comments on any such draft.
Completion arrangements
6.3    At Completion, the Sellers and the Purchaser shall comply with their respective obligations as specified in Schedule 3 (Completion Obligations).
Breach of completion obligations
6.4    If any Party fails to comply with any of its obligations specified in Schedule 3 (Completion Obligations) as required by Clause 6.3, the Institutional Seller (in the case of non-compliance by the Purchaser) or the Purchaser (in the case of non-compliance by any Seller) shall be entitled by written notice to the other (and to the Management Sellers’ Representative):
(a)    to defer Completion for a period of up to ten Business Days (in which case the provisions of this Clause 6 shall apply to Completion as so deferred);
(b)    to require all Parties to effect Completion so far as practicable having regard to the defaults that have occurred; or
(c)    subject to Completion having first been deferred at least once under Clause 6.4(a), to terminate this Agreement, in the case of the Purchaser, only where any Seller has still not complied with any of its Fundamental Obligations or, in the case of the Institutional Seller, only where the Purchaser has still not complied with any of its Fundamental Obligations,
in each case without prejudice to such Party’s rights under this Agreement (including the right to claim damages) or otherwise.
7    Warranties and undertakings
Institutional Seller’s warranties
7.1    The Institutional Seller warrants to the Purchaser that:
(a)    it is a private limited liability company (société à responsabilité limitée) established and validly existing under the laws of the Grand Duchy of Luxembourg;



(b)    it is the sole legal and beneficial owner of, and has the right to exercise all voting and other rights over, the Shares set forth against its name in part 2 of Schedule 1 (The Sellers);
(c)    there is no Encumbrance in relation to the Shares set forth against its name in part 2 of Schedule 1 (The Sellers);
(d)    the Shares constitute the entire issued share capital of the Company;
(e)    all the Shares set forth against its name in part 2 of Schedule 1 (The Sellers) are fully paid or properly credited as fully paid, have not been repaid (in full or in part) and there is no liability to pay any additional amounts on such Shares;
(f)    save for any Encumbrance that will be discharged upon Completion, the Company directly or indirectly legally and beneficially owns the entire issued share capital of each other Group Company;
(g)    it has full power and authority to enter into, deliver and perform its obligations under this Agreement and each other Transaction Document to which it is a party;
(h)    this Agreement and each other Transaction Document to which it is a party will, when executed, constitute valid and binding obligations of the Institutional Seller in accordance with their respective terms;
(i)    the execution and delivery of, and the performance by the Institutional Seller of its obligations under this Agreement and each other Transaction Document to which it is a party will not:
(i)    conflict with or result in a breach of any provision of the articles of association of the Institutional Seller;
(ii)    conflict with, result in a breach of or constitute a default under any agreement or instrument to which the Institutional Seller is a party (other than a breach of any confidentiality provisions);
(iii)    conflict with or result in a breach of any law or regulation, or of any order, injunction, judgement or decree of any court, that applies to the Institutional Seller; or
(iv)    save as set out in this Agreement, require it to obtain any consent or approval of, or give any notice to or make any registration with, any Governmental Entity that has not been unconditionally and irrevocably obtained or made at the date of this Agreement (save for any legal or regulatory entitlement to revoke the same other than by reason of any misrepresentation or misstatement);



(j)    subject to the satisfaction of the Condition, it has obtained or satisfied all corporate, regulatory and other approvals and any other conditions necessary to execute and perform its obligations under this Agreement and the Transaction Documents; and
(k)    it is not insolvent or unable to pay its debts within the meaning of any laws relating to insolvency applicable to it.
7.2    The Institutional Seller’s warranties set out in Clause 7.1 will be deemed to be repeated immediately before Completion by reference to the facts and circumstances then existing (and as if references in those warranties to the date of this Agreement were references to the Completion Date).
Management Sellers’ warranties
7.3    Each Management Seller warrants severally (and not jointly or jointly and severally with any other Seller) to the Purchaser that:
(a)    he or she is the sole legal and beneficial owner of, and has the right to exercise all rights over, the Shares set forth against his or her name in of part 1 of Schedule 1 (The Sellers);
(b)    there is no Encumbrance in relation to such Shares set forth against his or her name in of part 1 of Schedule 1 (The Sellers);
(c)    the Shares constitute the entire issued share capital of the Company;
(d)    all the Shares set forth against his or her name in part 1 of Schedule 1 (The Sellers) are fully paid or properly credited as fully paid, have not been repaid (in full or in part) and there is no liability to pay any additional amounts on such Shares;
(e)    save for any Encumbrance that will be discharged upon Completion, the Company directly or indirectly legally and beneficially owns the entire issued share capital of each other Group Company;
(f)    he or she has the capacity to enter into, deliver and perform his or her obligations under this Agreement and each other Transaction Document to which he or she is a party;
(g)    this Agreement and each other Transaction Document to which he or she is a party will, when executed, constitute valid and binding obligations of such Management Seller in accordance with their respective terms;
(h)    the execution and delivery of, and the performance by the Management Seller of his or her obligations under this Agreement and each other Transaction Document to which he or she is a party will not:



(i)    conflict with, result in a breach of or constitute a default under any agreement or instrument to which the Management Seller is a party (other than a breach of any confidentiality provisions);
(ii)    conflict with or result in a breach of any law or regulation, or of any order, injunction, judgement or decree of any court, that applies to the Management Seller; or
(iii)    save as set out in this Agreement, require him or her to obtain any consent or approval of, or give any notice to or make any registration with, any Governmental Entity that has not been unconditionally and irrevocably obtained or made at the date of this Agreement (save for any legal or regulatory entitlement to revoke the same other than by reason of any misrepresentation or misstatement); and
(i)    he or she is not bankrupt or unable to pay his or her debts within the meaning of any laws relating to bankruptcy applicable to him or her.
7.4    The Management Sellers’ warranties set out in Clause 7.3 will be deemed to be repeated immediately before Completion by reference to the facts and circumstances then existing (and as if references in those warranties to the date of this Agreement were references to the Completion Date).
Purchaser’s warranties
7.5    The Purchaser warrants to the Sellers that:
(a)    the Purchaser is a private company limited by shares established and validly existing under the laws of England and Wales;
(b)    the Purchaser has full power and authority to enter into, deliver and perform its obligations under this Agreement and each other Transaction Document to which the Purchaser is a party;
(c)    this Agreement and each other Transaction Document to which the Purchaser is a party will, when executed, constitute valid and binding obligations of the Purchaser in accordance with their respective terms;
(d)    the execution and delivery of, and the performance by the Purchaser of its obligations under this Agreement and each other Transaction Document to which the Purchaser is a party will not:
(i)    conflict with or result in a breach of any provision of the articles of association of the Purchaser;



(ii)    conflict with, result in a breach of or constitute a default under any agreement or instrument to which the Purchaser is a party (other than a breach of any confidentiality provisions);
(iii)    conflict with or result in a breach of any law or regulation, or of any order, injunction, judgement or decree of any court, that applies to the Purchaser;
(iv)    save as set out in this Agreement, require the Purchaser to obtain any consent or approval of, or give any notice to or make any registration with, any governmental, regulatory or other authority that has not been unconditionally and irrevocably obtained or made at the date of this Agreement (save for any legal or regulatory entitlement to revoke the same other than by reason of any misrepresentation or misstatement);
(e)    the Purchaser’s obligations hereunder are not subject to any conditions regarding its or any other person’s ability to obtain financing for the completion of the Transaction and the other transactions contemplated by this Agreement;
(f)    the Purchaser has available as at the date of this Agreement, and at Completion will have, the necessary cash resources to enable it to perform each of its obligations hereunder, complete the Transaction and pay all related fees and expenses (including VAT);
(g)    subject to the satisfaction of the Condition, the Purchaser has obtained or satisfied all corporate, regulatory and other approvals and any other conditions necessary to execute and perform its obligations under this Agreement and the Transaction Documents; and
(h)    the Purchaser is not insolvent or unable to pay its debts within the meaning of any laws relating to insolvency applicable to it.
7.6    The Purchaser’s warranties set out in Clause 7.5 will be deemed to be repeated immediately before Completion by reference to the facts and circumstances then existing (and as if references in those warranties to the date of this Agreement were references to the Completion Date).
Guarantor’s warranties
7.7    The Guarantor warrants to the Sellers that:
(a)    the Guarantor is a corporation established and validly existing under the laws of Delaware, United States of America;
(b)    the Guarantor has full power and authority to enter into, deliver and perform its obligations under this Agreement and each other Transaction Document to which the Guarantor is a party;



(c)    this Agreement and each other Transaction Document to which the Guarantor is a party will, when executed, constitute valid and binding obligations of the Guarantor in accordance with their respective terms;
(d)    the execution and delivery of, and the performance by the Guarantor of its obligations under this Agreement and each other Transaction Document to which the Guarantor is a party will not:
(i)    conflict with or result in a breach of any provision of the by-laws of the Guarantor;
(ii)    conflict with, result in a breach of or constitute a default under any agreement or instrument to which the Guarantor is a party (other than a breach of any confidentiality provisions);
(iii)    conflict with or result in a breach of any law or regulation, or of any order, injunction, judgement or decree of any court, that applies to the Guarantor; or
(iv)    save as set out in this Agreement, require the Guarantor to obtain any consent or approval of, or give any notice to or make any registration with, any governmental, regulatory or other authority that has not been unconditionally and irrevocably obtained or made at the date of this Agreement (save for any legal or regulatory entitlement to revoke the same other than by reason of any misrepresentation or misstatement);
(e)    subject to the satisfaction of the Condition, the Guarantor has obtained or satisfied all corporate, regulatory and other approvals and any other conditions necessary to execute and perform its obligations under this Agreement and the Transaction Documents; and
(f)    the Guarantor is not insolvent or unable to pay its debts within the meaning of any laws relating to insolvency applicable to it.
7.8    The Guarantor’s warranties set out in Clause 7.7 will be deemed to be repeated immediately before Completion by reference to the facts and circumstances then existing (and as if references in those warranties to the date of this Agreement were references to the Completion Date).
Purchaser’s waiver of rights against the Sellers
7.9    The Purchaser acknowledges and agrees that, other than with respect to the terms of any Transaction Document and in the absence of fraud, the Purchaser has no rights against and may not make any claim against: (i) any employee, director, manager, agent, officer or (except to the extent such adviser has entered into a reliance letter with the Purchaser) adviser of any Seller or any Seller’s Related Persons, on whom it may have relied before



agreeing to any term of, or entering into, this Agreement or any other Transaction Document; and (ii) any member of the Institutional Seller’s Group, in each case in connection with the Transaction, and each and every person referred to in (i) and (ii) shall be entitled to enforce this Clause 7.9 under the Contracts (Rights of Third Parties) Act 1999.
Sellers’ waiver of rights against the Group
7.10    Each Seller acknowledges and agrees that, in the absence of fraud, it has no rights against and may not make any claim against any present or former employee, director, agent or officer of any Group Company or any of its Related Persons on whom it may have relied before agreeing to any term of, or entering into, this Agreement or any other Transaction Document, and each and every such person shall be entitled to enforce this Clause 7.10 under the Contracts (Rights of Third Parties) Act 1999.
Obligations towards Covered Persons
7.11    For a period of six years from the Completion Date, the Purchaser will cause the Company to maintain in effect directors’ and officers’ liability insurance covering those persons who are currently covered by the Company’s or any Group Company’s directors’ and officers’ liability insurance policies on terms not materially less favourable than the terms of such current insurance coverage (“Covered Persons”) (as to scope of coverage or otherwise) than the terms of such current insurance coverage (the “Run-off Policy”). The Purchaser shall (on request) provide the Sellers with a copy of the terms and conditions of the Run-off Policy and proof of the premium payment. The Purchaser undertakes that it shall not take or omit to take (and shall procure that each member of the Purchaser’s Group shall not take or omit to take) any action which has the effect of invalidating the Run-off Policy. Each and every Covered Person shall be entitled to enforce this Clause 7.11 under the Contracts (Rights of Third Parties) Act 1999.
No covenants, obligations or liabilities
7.12    The Parties agree that, with effect from the Completion, there will be no covenants, obligations or liabilities of any nature whatsoever owed by any Group Company to any member of any Institutional Seller’s Group save for any obligations under the Transaction Documents and/or any agreements between a Group Company and Sharps Bedrooms Limited to the extent Disclosed in the Disclosure Letter and/or the Disclosure Documents (as defined in the Management Warranty Deed) or similar arrangements between such parties consistent with past practice. The Institutional Seller shall, and shall procure its Related Persons shall, take all steps necessary to give effect to the previous sentence.
8    Limitation of liability
Monetary limit



8.1    The aggregate liability of a Seller in respect of: (i) all and any Seller Claims; and (ii) (other than in the case of the Institutional Seller) all and any claims, proceedings, suits or actions under the Management Warranty Deed (but without prejudice to the separate limitations on claims set out in the Management Warranty Deed), shall be limited to, and shall in no event exceed, the amount of the Consideration received by such Seller.
Notice of claims
8.2    A Seller shall not be liable in respect of any Seller Claim unless written notice of such Seller Claim is given by the Purchaser to that Seller on or before the date falling two months after (and excluding) the date on which the relevant breach becomes known to the Purchaser and in any event on or prior to the date falling two years after (and excluding) the date of Completion. Any notice of a Seller Claim shall specify, in such detail as is reasonably available to the Purchaser at the time, the legal and factual basis of such Seller Claim and, if reasonably practicable, the amount likely to be claimed.
8.3    The failure of the Purchaser to provide written notice within the two-month period specified in Clause 8.2 will not affect the rights of the Purchaser in connection with any Seller Claim, except to the extent that the relevant Seller is prejudiced by such failure.
8.4    Where a breach giving rise to a Seller Claim is capable of remedy, the Purchaser shall not be entitled to make any claims (whether for damages or otherwise) in respect of such breach if the breach is remedied (to the satisfaction of the Purchaser (acting reasonably) and without cost or liability for any member of the Purchaser’s Group) within 30 days after notice of the Seller Claim is given under Clause 8.2.
8.5    If notice of any Seller Claim is served by the Purchaser under Clause 8.2, the relevant Seller shall not be liable in respect of such Seller Claim (if such Seller Claim has not been satisfied or settled) unless legal proceedings in respect of such Seller Claim are both issued and served within six months after (and excluding) the date on which notice is served, provided that in the case of a contingent liability the six-month period will commence on the date the relevant contingent liability become an actual liability.
Contingent Liabilities
8.6    No Seller shall be liable in respect of any liability which is contingent unless and until such contingent liability becomes an actual liability.
Purchaser actions
8.7    No Seller shall be liable in respect of any Seller Claim to the extent that the Seller Claim arises, or is increased, as a result of any act, transaction, arrangement, matter or thing done, or omitted to be done, pursuant to and in compliance with this Agreement or any other Transaction Document or at the written request of the Purchaser.




Mitigation
8.8    Nothing in this Agreement will or will be deemed to relieve or abrogate the Purchaser or, as the case may be, the Sellers, of any common law or other duty to mitigate any loss or damage.
Consequential losses etc.
8.9    No Seller shall be liable for any indirect or consequential losses.
No double recovery
8.10    The Purchaser shall not be entitled to recover from a Seller more than once for the same damage suffered.
Benefit
8.11    In assessing any damages or other amounts recoverable in respect of a Seller Claim, there shall be taken into account any corresponding saving by, or net quantifiable financial benefit to, a Group Company or any member of the Purchaser’s Group, including any Relief which would not have arisen but for the fact, matter or circumstance giving rise to the Seller Claim and, for those purposes, the amount of Tax which is saved by reason of the Relief shall be taken into account.
Recovery from third parties
8.12    If a Seller has paid an amount in discharge of any Seller Claim, and the Purchaser or any Group Company recovers from a third party a sum that would not have been received by the Purchaser or such Group Company (in whole or in part) but for the losses which are the subject matter of such Seller Claim, the Purchaser or the relevant Group Company shall pay to that Seller as soon as practicable after receipt of such sum an amount equal to:
(a)    the sum recovered from the third party less any costs and expenses reasonably and properly incurred in obtaining such recovery, less any Taxation attributable to the recovery and after taking account of any Relief available (to the extent not already taken into account in accordance with Clause 8.11) in respect of any matter giving rise to the Seller Claim; or
(b)    if less, the amount previously paid by that Seller to the Purchaser, less any Taxation attributable to the recovery and after taking account of any Relief available (to the extent not already taken into account in accordance with Clause 8.11) in respect of any matter giving rise to the Seller Claim.
Fraud



8.13    None of the limitations contained in this Clause 8 shall apply to any Seller in respect of his, her or its liability in relation to any Seller Claim that arises or is increased, or is delayed, as a result of fraud on the part of that Seller.
Withdrawal and settlement of Seller Claims
8.14    None of the Sellers shall be liable for any Seller Claim in respect of any breach of Clause 7.1(d) or 7.3(c) (“Entire Capitalisation Warranties”) or Clause 7.1(f) or 7.3(e) (“Group Capitalisation Warranties”, and together with the Entire Capitalisation Warranties, the “All Seller Warranties”) unless a Seller Claim in respect of all relevant All Seller Warranties relating to the same fact, matter or circumstance has been brought against and pursued in the same manner against all of the Sellers, save where the Purchaser has settled with some but not all of the Sellers under Clause 8.16, and each Seller shall only be liable for such Seller’s Relevant Seller Proportion of any such Seller Claim.
8.15    If the Purchaser withdraws a Seller Claim in respect of any breach of the All Seller Warranties against any of the Sellers, the Purchaser shall also withdraw all other Seller Claims for breach of the All Seller Warranties against each of the other Sellers relating to the same fact, matter or circumstance giving rise to such Seller Claim.
8.16    If the Purchaser settles a Seller Claim in respect of any breach of the All Seller Warranties against a Seller, the Purchaser shall offer to the other Sellers who are liable in respect of all Seller Claims for breach of the All Seller Warranties relating to the same fact, matter or circumstance giving rise to such Seller Claim, settlement terms which are, so far as practicable, the same (having regard to the Relevant Seller Proportion of all Seller Claims to be borne by, and the aggregate liability of, such Sellers) as those agreed with that Seller with whom the Purchaser has settled.
9    Tax information
9.1    The Purchaser undertakes to provide such assistance and such information in its possession or under its control as may reasonably be required by a Seller in order to negotiate, refute, settle, compromise or otherwise deal with any claim, investigation or enquiry by a Tax Authority regarding that Seller or, in the case of the Institutional Seller, a member of the Institutional Seller’s Group that relates to income, profits or gains earned, accrued or received (or treated for Tax purposes as earned, accrued or received) or any event occurring (or treated for Tax purposes as occurring) on or before Completion.
9.2    To enable compliance with the Purchaser’s obligations under Clause 9.1, the Purchaser shall, and shall cause each Group Company to:
(a)    properly retain and maintain all material records in its possession on or after the date of this Agreement until the earlier of seven years after Completion and such



time as the Institutional Seller agrees (such agreement not to be unreasonably withheld) that such retention and maintenance is no longer necessary; and
(b)    upon being given reasonable notice and subject to the relevant Seller giving any confidentiality undertaking reasonably required by the Purchaser, allow such Seller and its authorised managers, employees, agents, auditors and representatives, at such Seller’s cost, to:
(i)    inspect, review and make copies of such records and information for and only to the extent necessary for that purpose; and
(ii)    have reasonable access within five Business Days to any relevant employee, director, adviser or premises of any Group Company during Normal Business Hours.
10    Purchaser’s guarantee
10.1    The Guarantor unconditionally and irrevocably guarantees to the Sellers the due and punctual performance and observance by the Purchaser of all its obligations, commitments, undertakings, warranties and indemnities under or pursuant to the Transaction Documents (the “Guaranteed Obligations”), to the extent of any limit on the liability of the Purchaser in the Transaction Documents.
10.2    If and whenever the Purchaser defaults for any reason whatsoever in the performance of any of the Guaranteed Obligations, the Guarantor shall upon demand unconditionally perform (or procure performance of) and satisfy (or procure the satisfaction of) the Guaranteed Obligations in regard to which such default has been made in the manner prescribed by this Agreement as if it were the primary obligor and so that the same benefits shall be conferred on the Sellers as they would have received if the Guaranteed Obligations had been duly performed and satisfied by the Purchaser.
10.3    This guarantee is to be a continuing guarantee and accordingly is to remain in force until all the Guaranteed Obligations shall have been performed or satisfied. This guarantee is in addition to and without prejudice to and not in substitution for any rights or security which the Sellers may now or hereafter have or hold for the performance and observance of the Guaranteed Obligations.
10.4    As a separate and independent stipulation, the Guarantor agrees that any of the Guaranteed Obligations (including any moneys payable) which may not be enforceable against or recoverable from the Purchaser by reason of any legal limitation, disability or incapacity on or of the Purchaser or the dissolution, amalgamation or reconstruction of the Purchaser or any other fact or circumstances (other than any limitation imposed by this Agreement) shall nevertheless be enforceable against and recoverable from the Guarantor as though the same had been incurred by the Guarantor and the Guarantor were the sole or principal obligor in respect of such Guaranteed Obligation and shall be performed or paid by the Guarantor on demand.



10.5    The liability of the Guarantor under this Clause 10 shall not be affected, impaired, reduced or released by:
(a)    any variation of the Guaranteed Obligations;
(b)    any forbearance, neglect or delay in seeking performance of the Guaranteed Obligations or any granting of time for such performance;
(c)    the illegality, invalidity, unenforceability or, or any defect in, any provision of this Agreement or the Purchaser’s obligations under any of them;
(d)    any insolvency or similar proceeding; or
(e)    any other fact or event which in the absence of this provision would or might constitute or afford a legal or equitable discharge or release or a defence to a guarantor.
11    Non-solicitation covenant
11.1    The Institutional Seller shall not, and shall not direct or encourage the other members of the Institutional Seller’s Group to, for two years after the Completion Date, induce or seek to induce any present Senior Employee to become employed whether as employee, consultant or otherwise by any member of the Institutional Seller’s Group, whether or not such Senior Employee would thereby commit а breach of his contract of service.
11.2    The placing of an advertisement of a post available to the public generally and/or the undertaking of any bona fide recruitment campaign that is not targeted at any present Senior Employee, and/or the employment of any such present Senior Employee who responds to such post or campaign without encouragement or direct contact from any member of the Institutional Seller’s Group, shall not constitute a breach of Clause 11.1.
12    Announcements and confidentiality
Announcements
12.1    The Institutional Seller and the Guarantor shall make their respective Announcements, and the Management Sellers’ Representative (or such other Management Seller as the Management Sellers’ Representative may authorise in writing) shall make the Employee Notification, in each case, on the day after the date of this Agreement (and neither the Institutional Seller nor the Management Sellers’ Representative shall make any such announcement or communication before the Guarantor has made its Announcement, which the Guarantor shall notify to the Institutional Seller and the Management Sellers’ Representative as soon as reasonably practicable thereafter). Each such Party may repeat the Announcements or the Employee Notification (as applicable) in substantially the same form and content at Completion. The Sellers acknowledge that the Purchaser or the Guarantor will, if required by applicable laws, file a copy of this Agreement (together with any other material agreement relating to the Transaction) in connection with the



current report on SEC Form 8-K and/or the quarterly report on SEC Form 10-Q disclosing the entry by the Purchaser and the Guarantor into this Agreement and the Transaction, none of which will require notice to or the prior written consent of any Seller (provided that the Purchaser or Guarantor (as applicable) shall (unless prohibited by law or regulation) consult with a Seller and, to the extent practicable, take reasonable account of such Seller’s comments on any part of any such filing or report which identifies such Seller by name (which, in the case of the Institutional Seller, shall include any member of the Institutional Seller’s Group)).
12.2    Subject to Clause 12.1 or unless such disclosure is required by applicable law or regulation, by any competent judicial, governmental or regulatory body, or by the rules of any recognised stock exchange to which the relevant Party is subject, no Party shall make or issue any announcement or circular in connection with the existence or the subject matter of this Agreement or any other Transaction Document, or cause any such announcement to be made or issued, without the prior written consent of:
(a)    in the case of an announcement by a Seller, the Purchaser; and
(b)    in the case of an announcement by the Purchaser or the Guarantor, the Institutional Seller.
Confidentiality
12.3    The Confidentiality Agreement shall terminate on Completion (without prejudice to any rights, liabilities or obligations that have accrued prior to termination). At any time prior to Completion, to the extent that any provision of this Clause 12 is inconsistent with the provisions of the Confidentiality Agreement, the provisions of this Clause 12 shall prevail.
12.4    Subject to Clause 12.5, each Party shall treat as strictly confidential and shall not disclose or use any information received or obtained in connection with or as a result of entering into this Agreement or any other Transaction Document that relates to:
(a)    the provisions of this Agreement or any Transaction Document;
(b)    the negotiations relating to this Agreement and all other Transaction Documents;
(c)    (in relation to the obligations of the Sellers only) following Completion, any Group Company’s business or financial or other affairs;
(d)    (in relation to the obligations of the Purchaser and the Guarantor only) before Completion, any Group Company’s business or financial or other affairs; or
(e)    any other Party or its Related Persons.
12.5    Notwithstanding Clause 12.4, a Party may disclose or use information if and to the extent that:



(a)    such disclosure or use is required by applicable law or regulation, by any competent judicial, governmental or regulatory body, or by the rules of any recognised stock exchange;
(b)    such disclosure or use is required for the purpose of any judicial proceedings arising out of this Agreement or any other Transaction Document;
(c)    such disclosure or use is required to vest the full benefit of this Agreement or any other Transaction Document in any Party;
(d)    disclosure is made to a Tax Authority in connection with the Tax affairs of the disclosing Party;
(e)    disclosure is made to the professional advisers, auditors or bankers of a Party on a need-to-know basis, provided that the recipient is made aware of this Clause 12 and is bound by a duty of confidentiality;
(f)    the disclosure is made by the Institutional Seller to a member of the Institutional Seller’s Group or investors in funds managed or advised by members of the Institutional Seller’s Group, subject to the recipient keeping such information confidential;
(g)    in the case of a Management Seller, such disclosure is required to be made in the proper performance of his or her duties as an employee, director or other officer of the Group;
(h)    the information is or becomes publicly available (other than by breach of this Agreement or the Confidentiality Agreement);
(i)    the disclosure is made by the Purchaser to any bank or financial institution in connection with the financing by the Purchaser of the acquisition of the Shares, provided such person complies with the provisions of this Clause 12 in respect of such information as if it were a Party; or
(j)    in the case of a Seller, the Purchaser has given its prior written consent or, in the case of the Purchaser or Guarantor, the Institutional Seller has given its prior written consent.
12.6    Before any information is disclosed pursuant to Clause 12.5(a) or 12.5(d), the Party concerned shall (unless prohibited by law) promptly notify the other Parties to whom the disclosure relates of the circumstances of the disclosure and the information to be disclosed with a view to providing such other Parties with the opportunity to contest, limit or agree the timing and content of such disclosure. This Clause 12.6 shall not apply in respect of:
(a)    any disclosure made to a Tax Authority solely in connection with the personal Tax affairs of any Management Seller;



(b)    any election with respect to any Group Company under section 338(g) of the U.S. Internal Revenue Code of 1986, as amended, to be made by any member of the Purchaser’s Group; or
(c)    any announcement, disclosure or filing by the Purchaser or the Guarantor pursuant to the Securities Act 1933, as amended, the Securities Exchange Act of 1934, as amended, or the applicable rules of the New York Stock Exchange, which will not require notice to or the prior written consent of any Seller (provided that the Purchaser or Guarantor (as applicable) shall (unless prohibited by law or regulation) consult with a Seller and, to the extent practicable, take reasonable account of such Seller’s comments on any part of any such announcement, disclosure or filing which identifies such Seller by name (which, in the case of the Institutional Seller, shall include any member of the Institutional Seller’s Group)).
13    Notices
Service of notices
13.1    Any notice to be given under this Agreement must be in English and in writing, and may be served by hand, by first-class post or airmail (pre-paid and signed for in each case) and also (or exclusively) by email to the address or email address (as applicable) given below, or to such other address or email address as may have been notified by any Party to the other Parties for this purpose (which shall supersede the previous address or email address (as applicable) from the date on which notice of the new address or email address is deemed to be served under this Clause 13).
Institutional Seller:
For the attention of:Laura Spitoni
Address:15, Boulevard Friedrich Wilhelm Raiffeisen
L-2411 Luxembourg,
Grand Duchy of Luxembourg
Email address:LSpitoni@neuheim.lu
Copy (which shall not constitute notice) to:Institutional Seller’s Solicitors, for the attention of David Higgins and Tom McCarthy, or by email to david.higgins@kirkland.com and tom.mccarthy@kirkland.com
Management Sellers/Management Sellers’ Representative: to the address or email address set out against the name of each such person in column (2) of part 1 of Schedule 1 (The Sellers), in each instance with a copy to the Management Sellers’ Solicitors, marked for the attention of Mohammed Senouci and by email to Mohammed.Senouci@traverssmith.com.



Purchaser:
For the attention of:Bhaskar Rao and Mohammad Vakil
Address:Tempur House
Caxton Point, Printing House Lane
Hayes
Middlesex UB3 1AP
Email address:Bhaskar.Rao@tempursealy.com
Mo.Vakil@tempursealy.com
Legal@tempursealy.com
Copy (which shall not constitute notice) to:Purchaser’s Solicitors, for the attention of Tihir Sarkar, or by email to tsarkar@cgsh.com
Guarantor:
For the attention of:Bhaskar Rao and Mohammad Vakil
Address:1000 Tempur Way
Lexington
Kentucky 40511
United States of America
Email address:Bhaskar.Rao@tempursealy.com
Mo.Vakil@tempursealy.com
Legal@tempursealy.com
Copy (which shall not constitute notice) to:Purchaser’s Solicitors, for the attention of Tihir Sarkar, or by email to tsarkar@cgsh.com
13.2    Any notice served in accordance with Clause 13.1 shall be deemed to have been received:
(a)    if delivered by hand, at the time of delivery;
(b)    if sent by first class post, at 9.30 am on the second day after (and excluding) the date of posting;
(c)    if sent by airmail, at 9.30 am on the fifth day after (and excluding) the date of posting; or
(d)    if sent by email, at the time of transmission by the sender (provided that a sender does not receive an automated message of a failed delivery),
provided that if a notice would otherwise be deemed to have been received outside Normal Business Hours, it shall instead be deemed to have been received at the recommencement of such Normal Business Hours.



13.3    For the purposes of Clause 13.2, “Normal Business Hours” means 9.00 am to 5.30 pm local time in the place of receipt on any day which is not a Saturday, Sunday or public holiday in that location. In the case of service on any Party by email, the place of receipt shall be deemed to be the address specified for service on that Party by post.
13.4    In proving receipt of any notice served in accordance with Clause 13.2, it shall be sufficient to show that the envelope containing the notice was properly addressed and either delivered to the relevant address by hand or posted as a pre-paid, signed-for first class or airmail letter, or that the email was sent to the correct email address (provided that no notice was received which informed the sender that the message was not delivered).
13.5    This Clause 13 shall not apply to the service of any proceedings or other documents in any legal action.
14    General
Management Sellers’ Representative
14.1    Each Management Seller (by his or her execution of this Agreement) confirms and agrees that the Management Sellers’ Representative owes no responsibility, duty of care or liability whatsoever to such Management Seller in connection with his or her appointment as Management Sellers’ Representative and the Management Sellers’ Representative shall have no liability whatsoever to the Management Sellers in relation to any action which he or she has taken or omitted to take in the past or may in the future take or omit to take in his or her capacity as a Management Sellers’ Representative under this Agreement (save where the Management Sellers’ Representative acts fraudulently). Each Management Seller agrees not to bring any action or claim against the Management Sellers’ Representative in connection with his or her appointment as the Management Sellers’ Representative under this Agreement and/or in relation to any action which the Management Sellers’ Representative has taken or omitted to take in the past or may in the future take or omit to take in his or her capacity as Management Sellers’ Representative under this Agreement.
14.2    Each Management Seller hereby agrees to be bound by each act, agreement, waiver, approval, consent and decision of the Management Sellers’ Representative. The Management Sellers shall severally indemnify the Management Sellers’ Representative and hold the Management Sellers’ Representative harmless against any loss, damage, injury, liability or expense incurred by him or her in taking any action, giving any consent or doing or omitting to do anything in his or her capacity as the Management Sellers’ Representative pursuant to this Agreement (save where the Management Sellers’ Representative acts fraudulently), including the reasonable fees and expenses of any legal counsel retained by the Management Sellers’ Representative together with all other reasonable expenses incurred by the Management Sellers’ Representative in connection with such matters.



14.3    If at any time there is no Management Sellers’ Representative or the Management Sellers’ Representative is unable to act, all references in this Agreement to the Management Sellers’ Representative shall be deemed to be references to each of the Management Sellers.
14.4    Any person from time to time appointed as the Management Sellers’ Representative may: (a) elect to no longer act as the Management Sellers’ Representative; or (b) be removed or replaced at any time by the Management Sellers representing at least 50% of the aggregate number of Shares held by the Management Sellers immediately prior to Completion, in each case, by written notice to the Purchaser, the Guarantor and the Institutional Seller. The first Management Sellers’ Representative shall be Michael Logue and such person hereby confirms that he is willing to act as the Management Sellers’ Representative upon and subject to the terms of this Agreement.
Further assurances
14.5    On request by any Party, each Party shall, as soon as reasonably practicable at the requesting Party’s cost and insofar as such Party is reasonably able, do or procure the doing of all such acts and execute or procure the execution of all such documents (in a form reasonably satisfactory to the requesting Party) as the requesting Party may reasonably consider necessary or appropriate to carry this Agreement into effect and to give the requesting Party the full benefit of it.
14.6    The Purchaser agrees that it will provide as soon as reasonably practicable all information requested in writing by the Institutional Seller reasonably required to enable the Sellers to comply with their (or any relevant persons’) obligations under the Proceeds of Crime Act 2002 and the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (No. 692) whether such obligations apply prior to Completion or thereafter.
Securityholders’ Deed
14.7    The Sellers hereby agree that the Securityholders’ Deed shall terminate with effect from and conditional on Completion, and each Seller irrevocably waives any and all claims such Seller may have under the Securityholders’ Deed with effect from and conditional on Completion against any other Seller, any Group Company or any other direct or indirect party to the Securityholders’ Deed. The Sellers agree that the Group Companies shall be a third party beneficiary of this Clause 14.7 and shall be entitled to enforce this Clause 14.7 against the Sellers.
Termination
14.8    If this Agreement is terminated pursuant to Clause 4.5, 4.5 or 6.4 the Parties shall have no further obligations under this Agreement, provided that:
(a)    the Surviving Provisions shall survive termination; and



(b)    (for the avoidance of doubt) termination shall be without prejudice to any rights, liabilities or obligations that have accrued prior to termination, or to any other rights or remedies available under this Agreement or at law.
14.9    Save for the termination provisions set out in Clause 4.5, 4.5 or 6.4, no Party is entitled to terminate this Agreement to rescind this Agreement or treat this Agreement as terminated in any circumstances whatsoever (including by reason of any breach of this Agreement or circumstances giving rise to a Seller Claim). This will not exclude any liability for (or remedy in respect of) fraud.
Costs
14.10    Unless expressly provided otherwise in this Agreement, each Party shall bear its own costs and expenses in relation to the negotiation, preparation, execution and implementation of the Transaction Documents, but this Clause 14.10 shall not prejudice any Party’s right to seek to recover costs in any litigation or other dispute resolution procedure arising in connection with any Transaction Document.
Taxes
14.11    The Purchaser shall bear all stamp duties, stamp duty land tax, notarial fees, sales taxes, transfer taxes or other taxes payable as a result of the transactions contemplated by this Agreement, and shall be responsible for arranging the payment of any such Tax.
14.12    Unless otherwise stated, any sum payable by one Party to another pursuant to any Transaction Document is exclusive of any VAT. If any payment under a Transaction Document is treated as consideration for a taxable supply made for VAT purposes, and the relevant recipient of such payment (the “payee”) is required to account for VAT in respect of that supply, the payer shall pay to the payee (in addition to any other consideration for that supply) an amount equal to such VAT, subject (if applicable and save where a reverse charge procedure applies) to the provision of a valid VAT invoice, or the equivalent, in respect of such payment. Such payment shall be made on demand or, if later, at the same time as any such consideration is payable.
14.13    Unless otherwise stated, any sums payable by one Party to another pursuant to any Transaction Document shall be paid free and clear of all deductions or withholdings whatsoever, save only as required by applicable law. If any such deductions or withholdings are required by applicable law (other than any deduction or withholding from a payment in respect of the Consideration which arises as a result of a present or former connection between the Party receiving the payment (or any of its Related Persons) and the jurisdiction imposing such deduction or withholding), then the payer shall pay to the payee, at the same time as making the relevant payment, such amount as will, after all such deductions or withholdings have been made, leave the payee with the same net amount as it would have received in the absence of such deductions or withholdings.



Assignment
14.14    No Party may assign, hold on trust, transfer, charge or otherwise deal with all or any part of its rights or obligations under this Agreement without the prior written consent of (i) in the case of a Seller, the Purchaser and (ii) in the case or the Purchaser of the Guarantor, the Institutional Seller, provided that:
(a)    subject to Clause 14.15, this Agreement and the rights and obligations arising under it may, at any time after the date on which the Institutional Seller’s Relevant Seller Proportion of the Balancing Amount (if any) is paid by or on behalf of the Purchaser or the Institutional Seller (as applicable) pursuant to Clause 3.4, be assigned or transferred in whole or in the part by the Institutional Seller to any member of the Institutional Seller’s Group which, at the time of such assignment or transfer, is of at least equivalent financial standing as the Institutional Seller (provided that, if such assignee or transferee ceases to be a member of the Institutional Seller’s Group, this Agreement and the rights and obligations arising under it shall be transferred back to the Institutional Seller or another member of the Institutional Seller’s Group prior to such cessation);
(b)    subject to Clause 14.15, this Agreement and the rights and obligations arising under it may be assigned or transferred in whole or in part by the Purchaser to any member of the Purchaser’s Group which, at the time of such assignment or transfer, is of at least equivalent financial standing as the Purchaser (provided that if such assignee or transferee ceases to be a member of the Purchaser’s Group, this Agreement and the rights and obligations arising under it shall be transferred back to the Purchaser or another member of the Purchaser’s Group prior to such cessation); and
(c)    this Agreement and the benefits arising under it may be assigned or charged in whole or in part by the Purchaser or the Guarantor to its financial lenders or banks as security for any financing or refinancing or other banking or related facilities in respect of or in connection with the Transaction and such benefits may further be assigned to any other financial institution by way of security for the borrowings made under such Agreement or to any person entitled to enforce any such security,
in each case, without the prior written consent of any Party.
14.15    In the case of an assignment or transfer pursuant to Clause 14.14 above, the liability of any Party to such an assignee or transferee shall not be greater than it would have been had such assignment or transfer not taken place, and all the rights, benefits and protections afforded to a Party shall continue to apply to the benefit of that Party as against the assignee or transferee as they would have applied as against the assigning or transferring Party.



14.16    As a condition precedent to any assignment or transfer by the Institutional Seller or the Purchaser (as applicable) (the “Original Party”) of its rights and obligations to another member of the Institutional Seller’s Group or the Purchaser’s Group (as applicable) (the “Substitute Party”) pursuant to Clause 14.14(a) or 14.14(b), the Original Party shall require that the Substitute Party enters into a deed of adherence to this Agreement substantially in the agreed form. Following execution and delivery of a deed of adherence in accordance with this Clause 14.15, the Original Party shall have no further rights or obligations in respect of this Agreement and all references in this Agreement to the Original Party shall thereafter mean the Substitute Party instead of the Original Party.
14.17    Any purported assignment, declaration of trust, transfer, sub-contracting, delegation, charging or dealing in contravention of Clause 14.14 is ineffective.
Variation
14.18    No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of the Purchaser, the Guarantor, the Institutional Seller and the Management Sellers’ Representative (on behalf of the Management Sellers).
Rights of third parties
14.19    Except as expressly stated in this Agreement, this Agreement does not confer any rights on any person or party under the Contracts (Rights of Third Parties) Act 1999. The Parties may vary or terminate this Agreement in accordance with its terms without the consent of or notice to any person on whom such rights are conferred.
Entire agreement
14.20    The Transaction Documents constitute the whole agreement between the Parties relating to the Transaction to the exclusion of any terms implied in law that may be excluded by contract. They supersede and extinguish any and all prior discussions, correspondence, negotiations, drafts, arrangements, understandings or agreements relating to the Transaction.
14.21    Each Party agrees and acknowledges that:
(a)    it is entering into the Transaction Documents in reliance solely on the statements made or incorporated in them;
(b)    it is not relying on any other statement, representation, warranty, assurance or undertaking made or given by any person, in writing or otherwise, at any time prior to the date of this Agreement (“Pre-Contractual Statement”);
(c)    it is not entering into this Agreement in consequence of or in reliance on any unlawful communication as defined in section 30(1) of the Financial Services and Markets Act 2000 made by any other Party or any Party’s professional advisers; and



(d)    the other Parties are entering into this Agreement in reliance on the acknowledgements given in this Clause 14.21.
14.22    No Party shall have any liability whatsoever for any Pre-Contractual Statement, whether in contract, in tort, under the Misrepresentation Act 1967 or otherwise.
14.23    It is agreed that the only liability of any Party in respect of those statements, representations, warranties, assurances and undertakings made or given by it and set out or incorporated in this Agreement shall be for breach of contract.
14.24    Nothing in Clauses 14.20 to 14.23 limits or excludes any liability for fraud or fraudulent misrepresentation.
Inconsistency
14.25    If there is any inconsistency between the provisions of this Agreement and those of any other Transaction Document, the provisions of this Agreement shall prevail.
Remedies
14.26    The rights and remedies conferred on any Party by, or pursuant to, this Agreement are cumulative, and, except as expressly provided in this Agreement, are in addition to, and not exclusive of, any other rights and remedies available to such Party at law or in equity.
Waiver
14.27    Any waiver of any term or condition of this Agreement, waiver of any breach of any term or condition of this Agreement, or waiver of, or election whether or not to enforce, any right or remedy arising under this Agreement or at law, must be in writing and signed by or on behalf of the person granting the waiver (and, for the avoidance of doubt, the Management Sellers’ Representative may grant a waiver on behalf of the Management Sellers), and no waiver or election shall be inferred from a Party’s conduct.
14.28    Any waiver of a breach of any term or condition of this Agreement shall not be, or be deemed to be, a waiver of any subsequent breach.
14.29    Failure to enforce any provision of this Agreement at any time or for any period shall not waive that or any other provision or the right subsequently to enforce all provisions of this Agreement.
14.30    Failure to exercise, or delay in exercising, any right or remedy shall not operate as a waiver or be treated as an election not to exercise such right or remedy, and single or partial exercise or waiver of any right or remedy shall not preclude its further exercise or the exercise of any other right or remedy.
Severance



14.31    If any provision of this Agreement is held to be invalid or unenforceable by any judicial or other competent authority, all other provisions of this Agreement will remain in full force and effect and will not in any way be impaired.
14.32    If any provision of this Agreement is held to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted or amended, the provision in question will apply with the minimum modifications necessary to make it valid and enforceable and, if necessary, the Parties shall negotiate in good faith to amend the provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties’ original commercial intention.
Counterparts and duplicates
14.33    This Agreement may be executed in any number of counterparts, but shall not be effective until each Party has signed at least one counterpart. Each counterpart constitutes an original, and all the counterparts together constitute one and the same agreement. If this Agreement is executed in duplicate, each duplicate constitutes an original.
Governing law
14.34    This Agreement and any non-contractual obligations arising out of or in connection with it (including any non-contractual obligations arising out of the negotiation of the transaction contemplated by this Agreement) are governed by and shall be construed in accordance with the laws of England.
Jurisdiction
14.35    Except in relation to the determination of the Effective Time Statements and Payment Statement under Schedule 4 (Effective Time Statements), the Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement (including a dispute relating to any non-contractual obligation arising out of or in connection with either this Agreement or the negotiation of the transaction contemplated by this Agreement).
Agent for service of process
14.36    Each Party that is a body corporate not incorporated in England and Wales undertakes to ensure that at all times a person with an address in England or Wales is appointed as its process agent to receive on its behalf service of any proceedings in respect of any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) (the “Process Agent”). Such service shall be deemed completed on delivery to the Process Agent, whether or not it is forwarded to or received by the Party that appointed it.



14.37    At the date of this Agreement, the Institutional Seller has appointed Sun European Partners, LLP of 2 Park Street, 1st Floor, London W1K 2HX, United Kingdom as its Process Agent. Any notice to such process agent shall be marked for the attention of its Corporate Counsel. If such person ceases to be able to act as process agent or no longer has an address in England, the Institutional Seller shall immediately appoint a replacement Process Agent and deliver to the Purchaser a notice setting out the new Process Agent’s name and address together with a copy of the new Process Agent’s acceptance of its appointment.
14.38    At the date of this Agreement, the Guarantor has appointed the Purchaser of Tempur House, Caxton Point, Printing House Lane, Hayes, Middlesex UB3 1AP as its Process Agent. If such person ceases to be able to act as process agent or no longer has an address in England, the appointing Party shall immediately appoint a replacement Process Agent and deliver to the Sellers a notice setting out the new Process Agent’s name and address together with a copy of the new Process Agent’s acceptance of its appointment.
14.39    Each Party irrevocably agrees that any proceedings or document served on the Process Agent appointed by it will be validly served if delivered in accordance with Clause 13.
14.40    Nothing contained in this Agreement shall affect the right to serve process in any other manner permitted by law.
This Agreement is entered into by the Parties on the date written at the beginning of this Agreement.






Schedule 1
The Sellers
[***]



Schedule 2
Conduct of Business prior to Completion
Subject to Clause 5.4, each Seller shall procure (insofar as it is legally able) that, between the execution of this Agreement and Completion, no Group Company does any of the following things without the prior written consent of the Purchaser, such consent not to be unreasonably withheld or delayed:
1.make any substantial change in the nature or organisation of its business or discontinue or cease to operate (save as required by any COVID-19 Circumstances) all or any material part of its business;
2.transfer all or any part of its business or assets to any person other than a Group Company (other than in the ordinary and usual course of trading);
3.assume or incur, or agree to assume or incur, a liability, obligation or expense (actual or contingent) in excess of [***], other than in the ordinary course of business;
4.enter into any agreement or incur any commitment involving any capital expenditure:
(a)    in excess of [***] (in respect of a single commitment); or
(b)    which, together with all other capital commitments entered into between the date of this Agreement and Completion, exceeds [***],
in each case exclusive of VAT;
5.acquire, dispose of or grant any option in respect of any part of its assets, or agree to do so, except in the ordinary course of business on normal arm’s length terms;
6.appoint any director unless such appointment is needed to replace a director who ceases to act as a director;
7.make any amendment to the terms and conditions of employment (including remuneration, pension entitlements and other benefits) of any Senior Employee (other than minor increases in emoluments made in the ordinary and usual course of business consistent with past practices, in which case the Institutional Seller or the Management Sellers’ Representative shall notify the Purchaser of such increases in writing in advance);
8.increase the remuneration entitlements or opportunities of Employees, or any of them (including wages, salaries, cash allowances, commission, bonuses, and any other form of fixed or variable remuneration, taken as a whole, and whether contractual or discretionary), if this results or, in the case of an increase in targets or discretionary amounts, may reasonably be expected to result in an increase to the annual staff costs of the Group of 3% or more;



9.dismiss any Senior Employee (save in circumstances of gross misconduct) or propose or implement the collective redundancy of any Employees;
10.appoint, employ or offer to appoint or employ, any employee who would, if appointed, be a Senior Employee. other than to replace any employee who has resigned or has been dismissed;
11.terminate or materially vary any Incentive Scheme, establish any new Incentive Scheme, or exercise any discretion under an Incentive Scheme other than in the ordinary and usual course of business consistent with the Group Company’s past practice;
12.grant, vest, accelerate or forfeit any award under any Incentive Scheme held by or on behalf of any Employee or their permitted transferees other than in the ordinary and usual course of business consistent with the Group Company’s past practice or in accordance with the terms of such Incentive Schemes;
13.enter into, terminate (or give notice of termination under) or materially vary any recognition, collective bargaining, information and consultation or other material agreement with, or establish or recognise, any Employee Representative;
14.initiate or settle any material dispute with any Employee Representative;
15.establish, amend in any material respect or discontinue (in whole or in part) any arrangement or obligations for providing Retirement Benefits in respect of which any Group Company has any liability after Completion, and no Group Company shall communicate any plan, proposal or intention to take any such action;
16.incur any additional borrowings other than in the ordinary course of business;
17.waive, forgive or release (in whole or in part) any amounts due to it by or on behalf of any person (other than in the ordinary and usual course of business);
18.make any loan to any person, other than credit extended in the ordinary and usual course of trading;
19.create any Encumbrance over any of its assets or undertaking other than in the ordinary course of trading;
20.enter into any guarantee or indemnity other than in the ordinary course of trading;
21.enter into, vary, terminate or waive any agreement or arrangement with any member of the Institutional Seller’s Group;
22.vary or terminate any policy of insurance held by it as at the date of this Agreement;
23.amend its articles of association, or pass any resolution that is inconsistent with their provisions;



24.pass any shareholder resolution in general meeting or by way of written resolution including any resolution for winding up, or to capitalise any profits or sum standing to the credit of the share premium account, capital redemption reserve fund or any other reserve;
25.create, allot, issue, grant any option or right to subscribe for, acquire, repay, redeem, reduce or repurchase any share capital or loan capital of any Group Company;
26.merge or consolidate with a body corporate or any other person, participate in any other type of corporate reorganisation (including hive-ups and hive-downs), or acquire or agree to acquire any share or other interest in any corporate body;
27.cancel, abandon, fail to renew, fail to prosecute, fail to maintain or defend, or allow to lapse any Owned Intellectual Property;
28.sell, dispose of, assign, transfer, create any Encumbrance on or grant any licence, release, immunity, covenant not to sue or right with respect to, any Owned Intellectual Property (other than non-exclusive licences of Owned Intellectual Property granted to customers or distributors of the business of the Group in the ordinary course of business consistent with past practice);
29.enter into, vary or waive any material rights under, terminate (or serve notice of termination under) or assign any Material Contract; and/or
30.commence and/or settle any litigation or arbitration or mediation proceedings (except relating to debt collection in the ordinary and usual course of trading) where the amount claimed or the settlement amount (where applicable) exceeds [***], including any claim, legal action, proceeding, suit, litigation, mediation or arbitration relating to any material Intellectual Property Rights;
31.change its accounting reference date;
32.make any material change to the accounting practices or policies by reference to which its accounts are drawn up (other than as required in order to comply with any changes in the applicable generally accepted accounting policies in the relevant jurisdiction);
33.make, revoke or modify any material claim, election or option relating to Tax;
34.change its residence for tax purposes or knowingly, carelessly or recklessly establish a permanent establishment or other taxable presence in any jurisdiction where it does not have such a permanent establishment or taxable presence at the date of this Agreement; and/or
35.agree or commit (in such a way as to create legally binding obligations) to do any of the foregoing,



provided that in each case the prior consent of the Purchaser shall be deemed to have been given to the Sellers and each Group Company if an email requesting the relevant consent has been sent to Bhaskar Rao and Mohammad Vakil at Bhaskar.Rao@tempursealy.com and Mo.Vakil@tempursealy.com, copied to Legal@tempursealy.com, and (i) no automated message has been received by the sender indicating that the message has not been delivered to the recipient, and (ii) no response from or on behalf of the Purchaser has been received within five Business Days thereof.




Schedule 3
Completion Obligations

Sellers’ Obligations
1. On Completion, each Seller shall deliver to the Purchaser (or make available to the Purchaser):
(a) stock transfer forms in respect of the Shares set opposite its name in Schedule 1 (The Sellers), duly executed by such Seller in favour of the Purchaser;
Fundamental Obligation
(b) an irrevocable power of attorney in the agreed form executed by such Seller to enable the Purchaser (during the period prior to the registration of the transfer of the Shares) to exercise all voting and other rights attaching to the Shares referred to in paragraph 1(a) (each a “Voting PoA”); and
Fundamental Obligation
(c) share certificates in respect of the Shares referred to in paragraph 1(a), or an indemnity in the agreed form in respect of any lost certificate (each a “Lost Share Certificate Indemnity”).
Fundamental Obligation
2. On Completion, the Sellers shall deliver to the Purchaser (or make available to the Purchaser):
(a) the certificates of incorporation, corporate seals (if any), statutory and other books of each Group Company (duly written up-to-date) and the share certificates in respect of each of the Company’s subsidiaries which, for purposes of this paragraph, will be deemed delivered if held at the Company’s registered office; and
(b) the authentication code issued by the Registrar of Companies for each Group Company that has joined the PROtected Online Filing Scheme.
3. On Completion, the Institutional Seller shall deliver to the Purchaser (or make available to the Purchaser):
(a) a resignation letter in the agreed form from Paul Daccus who shall be resigning from his office as a director of each Group Company of which he is a director (the “Resignation Letter”);



(b) subject only to the Purchaser’s procuring the repayment of the Existing Facilities Pay-Off Amount (if any) in accordance with the pay-off letter delivered in accordance with Clause 6.2(b) in respect of the Existing Facilities, deliver the duly executed Deed of Release in relation to the Existing Facilities; and
Fundamental Obligation
(c) evidence satisfactory (in form and substance) to the Purchaser (acting reasonably) of the termination of:
(i) the consulting agreement entered into on 3 May 2013 between Sun Capital Partners Management V, LLC and Dreams Limited (as varied from time to time); and
(ii) the other agreements or arrangements identified in folder 3.22.1.2 of the Data Room between any (A) any Group Company and Night Holdings LLC and (B) any Group Company and the Seller,
in each case, at no cost or expense to any Group Company or member of the Purchaser’s Group and such that no Group Company has any liability or obligation outstanding under any such agreement or arrangement with effect from Completion
Fundamental Obligation
4.    On Completion, the Sellers shall provide to the Purchaser copies of board resolutions of each relevant Group Company which:
(a)    sanction the registration of the Purchaser as a member of the Company in respect of the Shares (subject only to the transfer of the Shares being duly stamped);
(b)    appoint as directors of such Group Company with effect from Completion such persons as the Purchaser may notify to the Institutional Seller and the Management Sellers’ Representative at least five Business Days before Completion;
(c)    accept the resignation of Paul Daccus as director of such Group Company so as to take effect from Completion; and
(d)    (in respect of Dreams Limited only) approving, affirming and/or ratifying the deeds of amendment entered into on or around the date of this Agreement between Dreams Limited, on the one hand, and each of Linda Meade, Kim Zaheer, Jonathan Hirst and Kalwant Singh, on the other hand, relating to such persons contracts of employment.
Purchaser’s Obligations



5. On Completion, the Purchaser shall:
(a) pay to each Seller amount equal to the Relevant Seller Proportion of the Estimated Consideration due to such Seller in accordance with Clause 3.5, and such payments shall be an absolute discharge to the Purchaser who shall not be concerned with the subsequent application of the amount paid; and
Fundamental Obligation
(b) procure that the relevant Group Company repays the Existing Facilities in an amount equal to the Existing Facilities Pay-Off Amount (if any) in accordance with the pay-off letter delivered in accordance with Clause 6.2(b) in respect of the Existing Facilities.
Fundamental Obligation




Schedule 4
Effective Time Statements
1.    After Completion, the Purchaser shall prepare:
(a)    draft Effective Time Statements in accordance with Schedule 5 (Accounting Policies); and
(b)    a draft Payment Statement.
2.    The Purchaser shall procure that the draft Effective Time Statements and the draft Payment Statement are submitted to the Institutional Seller within 60 Business Days after (and excluding) the Completion Date.
3.    For a period of 30 Business Days after (and excluding) the date of receipt of the draft Effective Time Statements and the draft Payment Statement, the Purchaser shall make available to the Institutional Seller and its representatives and professional advisers all such books, records, working papers and data relating to the Group and services of the employees of the Group during Normal Business Hours as the Institutional Seller may reasonably request in connection with its review of the draft Effective Time Statements and the draft Payment Statement.
4.    Within 30 Business Days after (and excluding) the date of receipt of the draft Effective Time Statements and the draft Payment Statement, the Institutional Seller shall serve notice on the Purchaser that either:
(a)    the draft Effective Time Statements and the draft Payment Statement are agreed; or
(b)    the draft Effective Time Statements and the draft Payment Statement are not agreed, in which case such notice (a “Seller’s Disagreement Notice”) shall set out in reasonable detail:
(i)    those amounts with which the Institutional Seller disagrees;
(ii)    the adjustments that, in the Institutional Seller’s opinion, should be made to those amounts in order to comply with the provisions of this Agreement relating to the preparation of the draft Effective Time Statements and the draft Payment Statement; and
(iii)    the reasons why the Institutional Seller disagrees with those items.
5.    If the Institutional Seller:
(a)    notifies the Purchaser in accordance with paragraph 4(a) above that the draft Effective Time Statements and the draft Payment Statement are agreed; or



(b)    fails to give notice to the Purchaser as required by paragraph 4 above,
then the draft Effective Time Statements and the draft Payment Statement shall be final and binding and shall, for the purposes of this Agreement, be treated as agreed on the date on which such notice is served or the next date after the last date on which such notice could have been served under paragraph 4 above (as applicable).
6.    If the Institutional Seller serves a Seller’s Disagreement Notice in accordance with paragraph 4(b) above, the Purchaser and the Institutional Seller shall use reasonable efforts to resolve the matters in dispute within 15 Business Days after (and excluding) the day of receipt of the Seller’s Disagreement Notice.
7.    If the disputed items are agreed within the period specified in paragraph 6, the draft Effective Time Statements and the draft Payment Statement (in each case amended as agreed) shall be final and binding and shall, for the purposes of this Agreement, be treated as agreed on the date on which such agreement is reached.
8.    If the disputed matters are not agreed within the period specified in paragraph 6, either the Purchaser or the Institutional Seller may refer the remaining matters in dispute to the Reporting Accountants (as defined in paragraph 9 below).
9.    Reporting Accountants
(a)    an independent firm of chartered accountants of international repute to be agreed between the Institutional Seller and the Purchaser shall be engaged jointly by the Institutional Seller (on behalf of the Sellers) and the Purchaser as reporting accountants (the “Reporting Accountants”) on the terms set out below. If either (i) the selected firm is unable or unwilling to act or (ii) the identity of the Reporting Accountants has not been agreed, or the terms of engagement of the Reporting Accountants have not been settled, within five Business Days of the referral pursuant to paragraph 8 (or such longer period as the Institutional Seller and the Purchaser may agree), then those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected jointly by the Institutional Seller and the Purchaser within seven days of a notice by one to the other requiring such agreement or, failing such agreement, shall be nominated on the application of either of the Institutional Seller or the Purchaser by the President for the time being of The Institute of Chartered Accountants in England and Wales.
(b)    Except to the extent that the Institutional Seller and the Purchaser agree otherwise, the Reporting Accountants:
(i)    shall consider only those items and amounts set out in the draft Effective Time Statements or draft Payment Statement as to which the Institutional Seller and the Purchaser still disagree and whether any of the arguments



put forward in the Seller’s Disagreement Notice is correct in whole or on part;
(ii)    shall determine what alterations should be made to the draft Effective Time Statements or draft Payment Statement in order to correct the relevant inaccuracy in them, provided that any such alterations will not result in an adjustment that is higher than the higher figure submitted by the Purchaser or the Institutional Seller and will not result in an adjustment that is lower than the lower figure submitted by the Purchaser or the Institutional Seller;
(iii)    shall apply the Accounting Policies and the other provisions set out in Schedule 5 (Accounting Policies); and
(iv)    for the avoidance of doubt shall not be entitled to determine the scope of their own jurisdiction.
(c)    The Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Parties save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction). In particular, save in the event of manifest error, their determination shall be deemed to be incorporated into the draft Effective Time Statements and the draft Payment Statement.
(d)    Each Party shall bear its own costs and expenses in relation to this Schedule 4 (Effective Time Statements), provided that the expenses (including VAT) of the Reporting Accountants shall be borne by the Sellers and the Purchaser in such proportion(s) determined by the Reporting Accountants or, failing such determination, equally by the Sellers and the Purchaser.
(e)    Nothing in this paragraph 9 shall entitle a Party or the Reporting Accountants access to any information or document that is: (i) protected by legal professional privilege or litigation privilege; or (b) reasonably determined to be confidential advice, provided that a Party shall not be entitled to refuse to supply such part or parts of documents as contain only the facts on which the relevant claim or argument is based.
(f)    Each Party and the Reporting Accountants shall, and shall procure that its accountants and other advisers shall, keep all information and documents provided to them pursuant to this paragraph 9 confidential and shall not use the same for any purpose, except for disclosure or use in connection with the preparation of the draft Effective Time Statements or the draft Payment Statement, the proceedings of the Reporting Accountants or another matter arising out of this Agreement or in defending any claim or argument or alleged claim or argument relating to this Agreement or its subject matter.



(g)    The Sellers and the Purchaser shall cooperate with the Reporting Accountants and shall promptly on request supply or procure the supply, to the Reporting Accountants, or provide full access to, all such documents and information as the Reporting Accountants may reasonably require for purposes of their review of the draft Effective Time Statements and draft Payment Statement.
10.    Determination
(a)    The determination of the Reporting Accountants shall be based solely on written representations submitted by or on behalf of the Institutional Seller and the Purchaser which are in accordance with the guidelines and procedures set out below and otherwise in accordance with this Agreement, and not on the basis of an independent review. The Reporting Accountants shall consider only the matters in dispute between the Institutional Seller and the Purchaser and the Reporting Accountants may not assign a value to any item other than either the value assigned by the Institutional Seller, on the one hand, or the Purchaser, on the other hand.
(b)    The timetable for the Reporting Accountants to make their determination will be governed by the following procedures:
(i)    Within ten Business Days of retaining the Reporting Accountants, the Institutional Seller and the Purchaser shall each submit to the Reporting Accountants three copies of a memorandum (which must include supporting exhibits) explaining their respective positions of all unresolved disputed items (the “Initial Report”).
(ii)    Within one Business Day of receiving Initial Reports from both the Institutional Seller and the Purchaser, the Reporting Accountants shall distribute a copy of each Initial Report to the other Party.
(iii)    Within ten Business Days of receiving the other Party’s Initial Report from the Reporting Accountants, each of (A) the Institutional Seller and (B) the Purchaser may (but shall not be obliged to) submit to the Reporting Accountants three copies of a memorandum responding to the Initial Report submitted to the Reporting Accountants by the other Party (the “Rebuttal Report”). If a Party elects not to submit a Rebuttal Report, it shall notify the Reporting Accountants in writing that it has waived its right to do so. The Rebuttal Report may respond solely to the arguments raised, and information submitted, by the other Party in its Initial Report and no Party may introduce new arguments or rely on new information in the Rebuttal Report that was not part of such Party’s Initial Report or which are not directly responsive to an argument raised by the other Party’s Initial Report, except to the extent such new arguments or new information are used in direct response to arguments raised and information submitted by the other Party in its Initial Report.



(iv)    Within one Business Day of receiving Rebuttal Reports from both the Institutional Seller and the Purchaser, the Reporting Accountants shall distribute a copy of each Rebuttal Report to the other Party.
(v)    At any time within ten Business Days of the submission of the Initial Reports or any Rebuttal Reports by the Institutional Seller and the Purchaser, the Reporting Accountants may submit written questions to either Party following the procedures set out in paragraph 10(c) below.
(vi)    Upon receipt of the Rebuttal Report or notice waiving the right to submit such a report from both the Institutional Seller, on the one hand, and the Purchaser, on the other hand, and receipt of all responses to any written questions submitted by the Reporting Accountants, the Reporting Accountants shall endeavour to issue a report containing their determination within ten Business Days after the later of (i) receiving Rebuttal Reports from both the Institutional Seller and the Purchaser or notice waiving the right to submit such report, as applicable, or (ii) responses (if any) to any written questions submitted by the Reporting Accountants to either Party following the procedures set out in paragraph 10(c) below.
(vii)    Unless requested by the Reporting Accountants in writing pursuant to the terms of paragraph 10(c) below, neither the Institutional Seller nor the Purchaser may present any additional information or arguments to the Reporting Accountants, either orally or in writing.
(viii)    The Reporting Accountants shall render their decision without conducting a hearing.
(c)    After receiving both Initial Reports and Rebuttal Reports, if any, the Reporting Accountants may submit written questions to the Institutional Seller, on the one hand, and the Purchaser, on the other hand, for written responses or may direct requests for additional information, calculations, or supporting documentation to the Institutional Seller or the Purchaser reasonably required by the Reporting Accountants in order to clarify or understand any position or argument made by either such Party in its written submission, in which case such Parties agree to co-operate with such requests (including by ensuring that the Reporting Accountants are provided copies of all relevant books and records and other information) in the manner and in accordance with the timing described in this Schedule 4 (Effective Time Statements). If any such questions are addressed to only one of the Institutional Seller or the Purchaser, the Reporting Accountants shall submit the questions to that Party, with a copy to the other Party. Once received, the Party to whom the questions are addressed shall have five Business Days to answer the Reporting Accountants’ questions, and shall provide a copy of its written answers to the other Party at the time they are provided to the Reporting Accountants. In response thereto, the other Party may, within five Business Days, submit a



response to such answer(s) to the Reporting Accountants and shall provide a copy of its response to the other Party at the time it is provided to the Reporting Accountants. If any such questions are addressed to both the Institutional Seller and the Purchaser, both Parties shall have five Business Days from the date of receipt to respond to the Reporting Accountants and each Party shall provide a copy of its written answers to the other Party at the time they are provided to the Reporting Accountants. In response thereto, each Party may, within five Business Days, submit a response to the other Party’s answer(s) to the Reporting Accountants and shall provide a copy to the other Party at the time it is provided to the Reporting Accountants.
(d)    The Parties agree not to engage in any ex parte communication with the Reporting Accountants. The Reporting Accountants will be required to include a representation in their engagement letter that they have not discussed the disputed matter with any Party prior to their being retained by the Parties, and to include a covenant in their engagement letter not to engage in ex parte communications with any Party throughout the course of their engagement.
(e)    The Reporting Accountants will be required to agree that, if between the delivery of the Seller’s Disagreement Notice and their engagement, the Institutional Seller and the Purchaser have exchanged certain proposals relating to the disputed items, such proposals were (i) intended solely for purposes of facilitating settlement discussions, (ii) were confidential and (iii) were provided solely on the condition and understanding that such proposals would not be permitted to be disclosed in any court or arbitration hearing, including with respect to the Reporting Accountants’ engagement in the dispute. The Reporting Accountants will be instructed to disregard any evidence of such settlement proposals and negotiations in their consideration of the disputed matters.
(f)    Except in connection with the dispute being resolved with respect to this Agreement, during the term of their engagement no member of the Reporting Accountants’ team may work on any matters related to the Institutional Seller or the Purchaser or otherwise perform services for any person that in any case may present a conflict of interest that is reasonably likely to affect the Reporting Accountants’ services or the unbiased performance of services by any member of the Reporting Accountants’ team. The foregoing restrictions on the Reporting Accountants will not apply to employees of the Reporting Accountants not assigned to work on this engagement. On the date they are engaged to resolve any dispute under this Agreement, the Reporting Accountants will be required to confirm to the Parties that they have not had any communication with any Party or discussed the matter with any person except as disclosed in writing to the Parties or a communication in which both the Parties participated.




Schedule 5
Accounting Policies

[***]





SIGNATURES


PURCHASER

SIGNED by )
)
for and on behalf of )
TEMPUR SEALY (UK) LIMITED ) _/s/ Bhaskar Rao
Director


GUARANTOR

SIGNED by )
)
for and on behalf of )
TEMPUR SEALY INTERNATIONAL, )
INC. ) __/s/ Scott L. Thompson_____________
Authorised Signatory




INSTITUTIONAL SELLER

SIGNED BY

__/s/ Laura Spitoni______________
Laura Spitoni
Authorised Manager

for and on behalf of
PROJECT DREAM S.À R.L.






MANAGEMENT SELLERS

SIGNED by )
MICHAEL LOGUE ) ____/s/ Michael Logue_____________
Signature


SIGNED by )
LINDA MEADE ) ___/s/ Linda Meade_________________
Signature


SIGNED by )
KIM ZAHEER ) __/s/ Kim Zaheer ________________
Signature


SIGNED by )
JONATHAN HIRST ) __/s/ Jonathan Hirst________________
Signature

Document

AMENDMENT NO. 4 dated as of May 26, 2021 (this “Amendment”) by and among Tempur Sealy International, Inc., a Delaware corporation (the “Parent Borrower”), Tempur-Pedic Management, LLC, a Delaware limited liability company (the “Additional Borrower”, and together with the Parent Borrower, the “Borrowers”), the Subsidiary Guarantors party hereto, each Lender party hereto and JPMorgan Chase Bank, N.A. (“JPMorgan”), as Administrative Agent (in such capacity, the “Administrative Agent”) to the Amended and Restated Credit Amendment dated as of October 16, 2019 (as amended by that certain Amendment No. 1, dated as of May 13, 2020, that certain Amendment No. 2, dated as of June 10, 2020, that certain Amendment No. 3, dated as of February 2, 2021, and as further amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”) among the Parent Borrower, the Additional Borrower, the Lenders party thereto, JPMorgan, as Administrative Agent, Swingline Lender and Issuing Lender, and Bank of America, N.A., Fifth Third Bank, National Association and Wells Fargo Bank, N.A., as Issuing Lenders. Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Amended Credit Agreement (as defined below).
RECITALS:
WHEREAS, (a) JPMorgan, Bank of America, N.A., Wells Fargo Bank, N.A. and Fifth Third Bank, National Association, are each acting as Joint Bookrunner and Joint Lead Arranger to this Amendment, (b) HSBC Bank USA, N.A., HSBC UK Bank plc, Mizuho Bank, LTD. and Sumitomo Mitsui Banking Corporation are each acting as Senior Co-Documentation Agent to this Amendment and (c) TD Bank, N.A., The Bank of Nova Scotia and Truist Bank are each acting as Co-Documentation Agent to this Amendment;
WHEREAS, the Borrowers have requested that the Lenders (such Lenders under the Credit Amendment immediately prior to the incurrence of the 2021 Delayed Draw Term Loan Commitments (as defined below), the “Existing Lenders”) constituting the Required Lenders agree to amend certain provisions of the Credit Agreement as set forth in Section 1 hereof on the terms and subject to the conditions set forth in Section 3 hereto;
WHEREAS, the Borrowers have requested to amend the Credit Agreement to incur Incremental Term Commitments in the form of 2021 Delayed Draw Term Commitments in an aggregate principal amount of $300,000,000 pursuant to Incremental Term Commitments incurred in accordance with Section 2.25(a) of the Credit Agreement (the delayed draw term loans with respect to the 2021 Delayed Draw Term Commitments, the “2021 Delayed Draw Term Loans” and, the Lenders with respect to the 2021 Delayed Draw Term Commitments, the “2021 Delayed Draw Term Lenders”), which 2021 Delayed Draw Term Loans will be used for general corporate purposes and to pay fees and expenses in connection with this Amendment as set forth in Section 1 hereof and in the Amended Credit Agreement on the terms herein and therein and subject to the conditions set forth in Section 3 hereto and in the Amended Credit Agreement;
WHEREAS, the Loan Parties, the Administrative Agent, each of the Existing Lenders party hereto and each 2021 Delayed Draw Term Lender agree to amend the Credit Agreement to provide for the 2021 Delayed Draw Term Commitments and to amend certain provisions of the Credit Agreement, in each case subject to the terms and conditions set forth in Section 3 hereto;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:




Section 1.    Incremental Amendment to Credit Agreement. On the Amendment No. 4 Effective Date, subject to the satisfaction or waiver of the conditions set forth in Section 3 hereof, the Loan Parties, the Administrative Agent, each of the Existing Lenders party hereto and each of the 2021 Delayed Draw Term Lenders hereby agree to the amendments of the Credit Agreement as set forth below (the Credit Agreement after giving effect to amendments in this Section 1, the “Amended Credit Agreement”):
(a)    The Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Amended Credit Agreement attached as Annex A hereto.
(b)    Schedule 1.1A to the Credit Agreement is hereby deleted and replaced with Schedule 1.1A attached as Exhibit 1 hereto.
(c)    Each 2021 Delayed Draw Term Lender shall have an Incremental Term Commitment in respect of the 2021 Delayed Draw Term Loans in the amount set forth opposite its name on Schedule 1.1A of the Credit Agreement (such commitment, the “2021 Delayed Draw Term Commitments”). With effect on and after the Amendment No. 4 Effective Date, (i) each 2021 Delayed Draw Term Lender shall constitute a “Term Lender” and “Lender” under the Amended Credit Agreement and the other Loan Documents and shall have all the rights and obligations of a Lender holding a 2021 Delayed Draw Term Commitment, (ii) the 2021 Incremental Delayed Draw Term Loans shall constitute “Term Loans”, “Loans” and “Incremental Term Loans” (except where context otherwise requires) for all purposes of the Amended Credit Agreement and (iii) the 2021 Delayed Draw Term Commitments shall constitute “Term Commitments”, “Incremental Term Commitments” and “Commitments” for all purposes of the Amended Credit Agreement. For the avoidance of doubt, the 2021 Delayed Draw Term Loans shall constitute a separate Class from the Initial Term Loans made on the Amendment and Restatement Effective Date.
(d)    The 2021 Delayed Draw Term Commitment provided for hereunder shall terminate immediately upon the earliest of (i) the 2021 Delayed Draw Funding Date, (ii) the funding of the 2021 Delayed Draw Term Loans, and (iii) the 2021 Delayed Draw Term Commitment Termination Date.
(e)    As used in any other Loan Document, all references to the “Credit Agreement”, the “Amended Credit Agreement” or the “Amended and Restated Credit Agreement” in such Loan Document shall, unless the context otherwise requires, mean or refer to the Amended Credit Agreement.
Section 2.    Representations and Warranties. To induce the Administrative Agent, the Existing Lenders party hereto and the 2021 Delayed Draw Term Lenders to enter into this Amendment and to make the 2021 Delayed Draw Term Commitments, each Loan Party hereby represents and warrants to the Administrative Agent, each Existing Lender party hereto and each 2021 Delayed Draw Term Lender that as of the Amendment No. 4 Effective Date:
(a)    Each Group Member has all requisite power and authority, and the legal right, to execute, deliver and perform its obligations under this Amendment and perform its obligations under the Loan Documents.
(b)    The execution, delivery and performance by the Loan Parties of this Amendment and the performance by the Loan Parties of the other Loan Documents to which it is a party are within each Loan Party’s corporate powers and have been duly authorized by all necessary corporate, stockholder, and shareholder action. As of the Amendment No. 4 Effective Date, this Amendment has 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 similar 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)    The execution, delivery and performance by the Loan Parties of this Amendment, the performance by the Loan Parties of the other Loan Documents to which it is a party, the incurrence of the 2021 Delayed Draw Term Commitments under the Amended Credit Agreement and the use of the proceeds thereof (i) will not violate any Requirement of Law or any Contractual Obligation of any Group Member 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 Security Documents), in each case (i) and (ii), except to the extent such violation (other than any violation of the Certificate of Incorporation and By-Laws or other organizational or governing documents of any Group Member) or Lien, could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(d)    The representations and warranties made by any Loan Party in or pursuant to the Loan Documents, including those included in Section 4 of the Amended Credit Agreement, are true and correct in all material respects (except that any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect is true and correct in all respects) on and as of the date hereof as if 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 are true and correct in all material respects as of such earlier date.
(e)    No Default or Event of Default has occurred and is continuing.
Section 3.    Conditions to the Amendment No. 4 Effective Date. This Amendment shall become effective (the “Amendment No. 4 Effective Date”) immediately upon satisfaction or waiver of the following conditions precedent:
(a)    The Administrative Agent shall have received this Amendment, executed and delivered by the Administrative Agent, each Loan Party, Existing Lenders constituting the Required Lenders and each 2021 Delayed Draw Term Lender.
(b)    The Lenders and the Administrative Agent shall have received all fees required to be paid by the Parent Borrower as of the Amendment No. 4 Effective Date (including, without limitation, the upfront fees to be paid by the Parent Borrower to the Administrative Agent for the account of each 2021 Delayed Draw Term Lender in respect of such 2021 Delayed Draw Term Lender’s 2021 Delayed Draw Term Commitment), and reimbursement for all expenses required to be reimbursed by the Parent Borrower as of the Amendment No. 4 Effective Date for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before two days prior to the Amendment No. 4 Effective Date.
(c)    The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Amendment No. 4 Effective Date, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and attachments, including the Organization Documents of each Loan Party certified by the relevant authority of the jurisdiction of organization of each Loan Party; provided that such Organization Documents shall not be required to the extent a Responsible Officer, a secretary or an assistant secretary of such Loan Party certifies that such Organization Documents are unchanged since last delivered to the Administrative Agent, (ii) with respect to each Loan Party, such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers, secretaries or assistant secretaries of each such Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each officer thereof authorized to act as an



officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party and (iii) a good standing certificate, which may be a short form, as of a recent date for each Loan Party from its jurisdiction of organization.
(d)    The Administrative Agent shall have received an executed legal opinion dated the Amendment No. 4 Effective Date of each of (i) Cleary Gottlieb Steen & Hamilton LLP, (ii) Morgan, Lewis & Bockius LLP and (iii) McGuire, Wood & Bissette, P.A., with respect to certain matters relating to the Loan Parties in form and substance reasonably satisfactory to the Administrative Agent.
(e)    (i) The Administrative Agent, on behalf of all the Lenders, shall have received, at least three Business Days prior to the Amendment No. 4 Effective Date, all documentation and other information about the Loan Parties as has been reasonably requested in writing at least 10 Business Days prior to the Amendment No. 4 Effective Date by the Administrative Agent, in each case as the Administrative Agent and the Lenders reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three Business Days prior to the Amendment No. 4 Effective Date, any Lender that has requested at least 10 Business Days prior to the Amendment No. 4 Effective Date a Beneficial Ownership Certification in relation to such Borrower shall have received such Beneficial Ownership Certification.
(f)    As of the Amendment No. 4 Effective Date, the Parent Borrower is in compliance, on a pro forma basis (after giving effect to the making of the 2021 Delayed Draw Term Loans and without netting the proceeds thereof), with the financial covenants set forth in Section 7.1 of the Amended Credit Agreement, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available.
(g)    Each Loan Party shall have obtained all approvals or consents of any Governmental Authority and all other Persons necessary in connection with the financing contemplated hereby, and any such approvals and consents shall be in full force and effect.
(h)    Since December 31, 2020, including after giving effect to this Amendment, there has not 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.
(i)    The Administrative Agent shall have received a certificate in a form reasonably satisfactory to it dated as of the Amendment No. 4 Effective Date (i) from the chief financial officer or treasurer of the Parent Borrower certifying as to the solvency of the Parent Borrower and its Subsidiaries, on a consolidated basis, after giving effect to the making of the 2021 Delayed Draw Term Loans and the use of proceeds thereof and (ii) from a Responsible Officer of the Parent Borrower certifying as to the matters in Sections 2(d), 2(e), 3(f) and 3(h) of this Amendment.
Section 4.    Effect of Amendment.
(a)    Except as expressly set forth herein or in the Amended Credit Agreement, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Amended Credit Agreement, the Guarantee and Collateral Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants, Liens, guarantees or agreements contained in the Credit Agreement, the Guarantee and Collateral Agreement or any other provision of the Credit Agreement, the Guarantee and Collateral Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and



effect. Except as expressly set forth herein, nothing herein shall be deemed to be a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, the Guarantee and Collateral Agreement or any other Loan Document in similar or different circumstances.
(b)    From and after the Amendment No. 4 Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import, and each reference to the “Credit Amendment” in any other Loan Document shall be deemed a reference to the Amended Credit Agreement. This Amendment shall constitute a “Loan Document” and an “Additional Credit Extension Amendment” for all purposes of the Amended Credit Agreement and the other Loan Documents.
Section 5.    Reaffirmation of Guarantee and Collateral Agreement. (a) Each of the Parent Borrower and each Loan Party hereby acknowledges and agrees that (i) each Loan Document to which it is a party is hereby confirmed and ratified and shall remain in full force and effect according to its respective terms (except as modified by this Amendment) and (ii) the Security Documents do, and all of the Collateral does, and in each case shall continue to, secure the payment of all Obligations (including, for the avoidance of doubt, the 2021 Delayed Draw Term Loans) on the terms and conditions set forth in the Security Documents and (b) each Subsidiary Guarantor hereby confirms and ratifies its continuing unconditional obligations as a Subsidiary Guarantor under the Guarantee and Collateral Agreement with respect to all of the Obligations (including, for the avoidance of doubt, the 2021 Delayed Draw Term Loans).
Section 6.    Post-Closing Obligations. With respect to the Mortgage existing as of the date hereof (the “Existing Mortgage”), not later than 90 days after the Amendment No. 4 Effective Date (or such longer period as may be agreed by the Administrative Agent acting reasonably), the Borrowers shall cause the applicable Loan Parties to deliver to the Administrative Agent either the items listed in paragraph (a) or the items listed in paragraph (b) below:
(a)    an opinion or email confirmation from local counsel in the relevant jurisdiction with respect to the Existing Mortgage, in form and substance reasonably satisfactory to the Administrative Agent, substantially to the effect that:
(i)    the recording of the Existing Mortgage is the only filing or recording necessary to give constructive notice to third parties of the lien created by the Existing Mortgage as security for the Obligations (as defined in the Existing Mortgage), including the 2021 Delayed Draw Term Loans, for the benefit of the Secured Parties; and
(ii)    no other documents, instruments, filings, recordings, re-recordings, re-filings or other actions, including, without limitation, the payment of any mortgage recording taxes or similar taxes, are necessary or appropriate under applicable law in order to maintain the continued enforceability, validity or priority of the Lien created by the Existing Mortgage as security for the Obligations, including the 2021 Delayed Draw Term Loans, for the benefit of the Secured Parties; or
(b)    with respect to the Existing Mortgage, the following, in each case in form and substance reasonably acceptable to the Administrative Agent:
(i)    an executed modification (a “Mortgage Modification”) to the Existing Mortgage, in form and substance reasonably satisfactory to the Administrative Agent, modifying any maximum secured amount stated therein and confirming that the Lien created by the Existing Mortgage secures the 2021 Delayed Draw Term Loans and otherwise ratifying and confirming the Lien created by the Existing Mortgage; and



(ii)    with respect to the Mortgage Modification to the Existing Mortgage, a date down endorsement (or, to the extent not available in the applicable jurisdiction, a modification endorsement) to the applicable existing title insurance policy, in form and substance reasonably satisfactory to the Administrative Agent.
Section 7.    Governing Law. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AMENDMENT (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 8.    Costs and Expenses. The Parent Borrower agrees to reimburse the Administrative Agent and each Lender for its actual and reasonable costs and expenses in connection with this Amendment to the extent required pursuant to Section 10.5 of the Amended Credit Agreement.
Section 9.    Counterparts; Electronic Execution. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by telecopy, emailed pdf. or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Amendment. The words “execution”, “signed”, “signature” and “delivery” and words of like import in or relating to any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include “Electronic Signatures” (defined as an electronic sound, symbol, or process attached to, or associated with, a contract or other record adopted by a person with the intent to sign, authenticate or accept such contract or record), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that nothing herein shall require the Administrative Agent to accept electronic signatures in any form or format without its prior written consent. Without limiting the generality of the foregoing, each party hereto hereby (i) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders and the Loan Parties, electronic images of this Amendment or any other Loan Documents (in each case, including with respect to any signature pages thereto) shall have the same legal effect, validity and enforceability as any paper original, and (ii) waives any argument, defense or right to contest the validity or enforceability of the Loan Documents based solely on the lack of paper original copies of any Loan Documents, including with respect to any signature pages thereto.
Section 10.    Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
Section 11.    Incorporation by Reference. The provisions of Sections 10.12 and 10.18 of the Amended Credit Agreement are hereby incorporated by reference, mutatis mutandis.
Section 12.    Severability. If any provision of this Amendment or any other Loan Document is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Amendment and the other Loan Documents shall not be affected or impaired thereby.



The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
[Remainder of page intentionally blank]





IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
TEMPUR SEALY INTERNATIONAL, INC., as Parent Borrower
By:/s/ Bhaskar Rao
Name: Bhaskar Rao
Title: Executive Vice President and Chief Financial Officer
TEMPUR-PEDIC MANAGEMENT, LLC, as Additional Borrower
By:/s/ James Schockett
Name: James Schockett
Title: Vice President, Treasurer and Assistant Secretary

Tempur World, LLC,
Tempur-Pedic Technologies, LLC,
Tempur Franchising US, LLC,
Tempur-Pedic North America, LLC,
Tempur Production USA, LLC,
Tempur Retail Stores, LLC,
Tempur Sealy International Distribution, LLC,
Sleep Outfitters USA, LLC,
Sealy Mattress Corporation,
Sealy Mattress Company,
The Ohio Mattress Company Licensing and Components Group,
Sealy, Inc.,
Sealy Ecommerce, LLC (f/k/a Cocoon International Sales, LLC),
Sealy Mattress Company of Puerto Rico,
Sealy Mattress Manufacturing Company, LLC,
Sealy Technology LLC,
Sealy US Sales, LLC,
Comfort Revolution, LLC,
Sleep Outfitters Outlet, LLC.
Tempur Sherwood, LLC,
Sherwood Southeast, LLC,
Sherwood Southwest, LLC,
Sherwood Midwest, LLC,
Sherwood West, LLC,
Tempur Holding, LLC, AND
Sherwood Northeast, LLC,
as Subsidiary Guarantors
By:/s/ James Schockett
Name: James Schockett
Title: Vice President, Treasurer and Assistant Secretary






JPMORGAN CHASE BANK, N.A., as Administrative Agent, Existing Lender and 2021 Delayed Draw Term Lender
By:/s/ Eric B. Bergeson
Name: Eric B. Bergeson
Title: Authorized Officer







Wells Fargo Bank, N.A., as Existing Lender and 2021 Delayed Draw Term Lender
By:/s/ Michael C. Bash
Name: Michael C. Bash
Title: SVP




BANK OF AMERICA, N.A., as Existing Lender and 2021 Delayed Draw Term Lender
By:/s/ John M. Hall
Name: John M. Hall
Title: Senior Vice President




FIFTH THIRD BANK, National Association, as Existing Lender and 2021 Delayed Draw Term Lender
By:/s/ Mary-Alicha Weldon
Name: Mary-Alicha Weldon
Title: Sr. Vice President



HSBC BANK USA, N.A., as Existing Lender and 2021 Delayed Draw Term Lender
By:/s/ Kyle Patterson
Name: Kyle Patterson
Title: Senior Vice President




HSBC UK Bank plc as 2021 Delayed Draw Term Lender
By:/s/ Andy Oates
Name: Andy Oates
Title: Deputy Head UK & Head of South, ISB



MIZUHO BANK, LTD., as Existing Lender and 2021 Delayed Draw Term Lender
By:/s/ Tracy Rahn
Name: Tracy Rahn
Title: Executive Director




Sumitomo Mitsui Banking Corporation, as Existing Lender and 2021 Delayed Draw Term Lender
By:/s/ Rosa Pritsch
Name: Rosa Pritsch
Title: Director




TD Bank, N.A., as Existing Lender and 2021 Delayed Draw Term Lender
By:/s/ Steve Levi
Name: Steve Levi
Title: Senior Vice President




TRUIST BANK, as Existing Lender and 2021 Delayed Draw Term Lender
By:/s/ Tesha Winslow
Name: Tesha Winslow
Title: Director




The Bank of Nova Scotia, as Existing Lender and 2021 Delayed Draw Term Lender
By:/s/ Frans Braniotis
Name: Frans Braniotis
Title: Managing Director




GOLDMAN SACHS BANK USA, as Existing Lender and 2021 Delayed Draw Term Lender
By:/s/ Jacob Elder
Name: Jacob Elder
Title: Authorized Signatory




ING Bank N.V., Dublin branch, as Existing Lender and 2021 Delayed Draw Term Lender
By:/s/ Louise Gough
Name: Louise Gough
Title: Vice President
By:/s/ Comac Langford
Name: Comac Langford
Title: Director




SANTANDER BANK, NA, as Existing Lender and 2021 Delayed Draw Term Lender
By:/s/ Irv Roa
Name: Irv Roa
Title: Managing Director




Huntingdon National Bank, as Existing Lender and 2021 Delayed Draw Term Lender
By:/s/ Greg R. Branstetter
Name: Greg R. Branstetter
Title: Managing Director Institutional Banking




ANNEX A
CONFORMED TO INCLUDE AMENDMENT NO. 1, DATED MAY 13, 2020 AMENDMENT NO. 2, DATED JUNE 10, 2020, AMENDMENT NO. 3, DATED FEBRUARY 2, 2021 AND AMENDMENT NO. 4, DATED May 26, 2021

AMENDED AND RESTATED CREDIT AGREEMENT
among
TEMPUR SEALY INTERNATIONAL, INC.,
as Parent Borrower,
the Additional Borrowers from Time to Time Parties Hereto,
the Several Lenders from Time to Time Parties Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
Dated as of October 16, 2019
_________________________________________________
JPMORGAN CHASE BANK, N.A.,
BofA SECURITIES INC.,
WELLS FARGO SECURITIES, LLC
and
FIFTH THIRD BANK,
as Lead Arrangers and as Joint Bookrunners,
and
BANK OF AMERICA, N.A.,
WELLS FARGO BANK, N.A.
and
FIFTH THIRD BANK,
as Co-Syndication Agents,
and
BANK OF NOVA SCOTIA,
MIZUHO BANK, LTD.
and
SUMITOMO MITSUI BANKING CORPORATION,
HSBC Bank USA, N.A.
and
HSBC UK Bank plc,
as Senior Co-Documentation Agents,




AND
TD BANK, N.A.,
BANK OF NOVA SCOTIA,
and
Truist Bank,
as Co-Documentation Agents.

TABLE OF CONTENTS
Page
Section 1. DEFINITIONS................................................................................................................1
1.1    Defined Terms.........................................................................................................1
1.2    Other Interpretive Provisions...................................................................................48
Section 2. AMOUNT AND TERMS OF COMMITMENTS...........................................................50
2.1    Term Commitments..............................................................................................…50
2.2    Procedure for Term Loan Borrowing........................................................................50
2.3    Repayment of Term Loans........................................................................................51
2.4    Revolving Commitments...........................................................................................51
2.5    Procedure for Revolving Loan Borrowing................................................................52
2.6    Swingline Commitment.............................................................................................53
2.7    Procedure for Swingline Borrowing; Refunding of Swingline Loans.......................54
2.8    Commitment Fees, etc................................................................................................55
2.9    Termination or Reduction of Revolving Commitments.............................................55
2.10    [Reserved]............................................................................................................…..55
2.11    Optional Prepayments................................................................................................55
2.12    Mandatory Prepayments.............................................................................................56
2.13    Conversion and Continuation Options.......................................................................58
2.14    Limitations on Eurocurrency Tranches and Foreign Currency Loans.......................59
2.15    Interest Rates and Payment Dates..............................................................................59
2.16    Computation of Interest and Fees..............................................................................59
2.17    Alternate Rate of Interest...........................................................................................60
2.18    Pro Rata Treatment and Payments.............................................................................61
2.19    Requirements of Law.................................................................................................63
2.20    Taxes..........................................................................................................................65
2.21    Indemnity...................................................................................................................69
2.22    Change of Lending Office.........................................................................................70
2.23    Replacement of Lenders............................................................................................70
2.24    Defaulting Lenders....................................................................................................70
2.25    Incremental Facilities................................................................................................72
2.26    Currency Fluctuations...............................................................................................74
2.27    Borrower Representative...........................................................................................74
2.28    Amend and Extend Transactions...............................................................................75



2.29    Refinancing Facilities..............................................................................................76
Section 3. LETTERS OF CREDIT..................................................................................................78
3.1    L/C Commitment....................................................................................................78
3.2    Procedure for Issuance of Letter of Credit..............................................................79
3.3    Fees and Other Charges...........................................................................................79
3.4    L/C Participations....................................................................................................79
3.5    Reimbursement Obligation of the Borrowers..........................................................80
3.6    Obligations Absolute...............................................................................................81
3.7    Letter of Credit Payments........................................................................................81
3.8    Applications.............................................................................................................81
3.9    Cash Collateralization..............................................................................................81
3.10    Currency Adjustments..............................................................................................82
Section 4. REPRESENTATIONS AND WARRANTIES................................................................82
4.1    Financial Condition...................................................................................................82
4.2    No Change.................................................................................................................82
4.3    Existence; Compliance with Law..............................................................................83
4.4    Power; Authorization; Enforceable Obligations.......................................................83
4.5    No Legal Bar.............................................................................................................83
4.6    Litigation...................................................................................................................83
4.7    No Default.................................................................................................................83
4.8    Ownership of Property; Liens...................................................................................84
4.9    Intellectual Property..................................................................................................84
4.10    Taxes.........................................................................................................................84
4.11    Federal Regulations...................................................................................................84
4.12    Labor Matters............................................................................................................84
4.13    ERISA.......................................................................................................................84
4.14    Investment Company Act; Other Regulations..........................................................85
4.15    Subsidiaries...............................................................................................................85
4.16    [Reserved].................................................................................................................85
4.17    Environmental Matters..............................................................................................85
4.18    Accuracy of Information, etc....................................................................................86
4.19    Security Documents..................................................................................................87
4.20    Solvency....................................................................................................................87
4.21    EEA Financial Institutions........................................................................................87
4.22    OFAC; Anti-Money Laundering; Patriot Act...........................................................87
4.23    Governmental Authorization; Other Consents..........................................................88
Section 5. CONDITIONS PRECEDENT...........................................................................................88
5.1    Conditions to the Amendment and Restatement Effective Date................................88
5.2    Conditions to Each Extension of Credit On or After the Amendment and Restatement Effective Date...88
5.3 Conditions to Initial Extension of Credit to Each Additional Borrower.....................88
Section 6. AFFIRMATIVE COVENANTS........................................................................................90



6.1    Financial Statements................................................................................................91
6.2    Certificates; Other Information................................................................................91
6.3    Payment of Tax Obligations.....................................................................................93
6.4    Maintenance of Existence; Compliance...................................................................93
6.5    Maintenance of Property; Insurance.........................................................................93
6.6    Inspection of Property; Books and Records; Discussions.........................................93
6.7    Notices.......................................................................................................................94
6.8    Environmental Laws..................................................................................................94
6.9    [Reserved]..................................................................................................................95
6.10    Additional Collateral, etc...........................................................................................95
6.11    Further Assurances....................................................................................................96
6.12    [Reserved]..................................................................................................................96
6.13    Designation of Subsidiaries.......................................................................................97
6.14    Use of Proceeds.........................................................................................................98
6.15    Anti-Corruption Laws; Sanctions..............................................................................98
6.16    MIRE Events.............................................................................................................98
Section 7. NEGATIVE COVENANTS............................................................................................98
7.1    Financial Covenants.................................................................................................98
7.2    Indebtedness.............................................................................................................99
7.3    Liens.......................................................................................................................101
7.4    Mergers and Dissolutions.......................................................................................104
7.5    Dispositions............................................................................................................105
7.6    Restricted Payments................................................................................................106
7.7    Investments.............................................................................................................107
7.8    Prepayments, etc. of Indebtedness..........................................................................110
7.9    Transactions with Affiliates....................................................................................111
7.10    Change in Fiscal Year.............................................................................................111
7.11    Burdensome Agreements.........................................................................................111
7.12    Change in Nature of Business..................................................................................112
7.13    Use of Proceeds........................................................................................................112
7.14    Organization Documents..........................................................................................112
7.15    Anti-Corruption Laws; Sanctions.............................................................................112
Section 8. EVENTS OF DEFAULT..................................................................................................112
Section 9. THE ADMINISTRATIVE AGENT..................................................................................115
9.1 Appointment..............................................................................................................115
9.2 Delegation of Duties..................................................................................................115
9.3 Exculpatory Provisions..............................................................................................115
9.4 Reliance by the Administrative Agent.......................................................................116
9.5 Notice of Default........................................................................................................116
9.6 Non-Reliance on the Administrative Agent and Other Lenders................................116
9.7 Indemnification..........................................................................................................117
9.8 Administrative Agent in Its Individual Capacity.......................................................117
9.9 Successor Administrative Agent................................................................................117
9.10 Arrangers and Syndication Agents............................................................................118



9.11 Bilateral L/C Facilities, Swap Agreements and Cash Management Agreements...118
Section 10. MISCELLANEOUS....................................................................................................118
10.1 Amendments and Waivers......................................................................................118
10.2 Notices....................................................................................................................120
10.3 No Waiver; Cumulative Remedies..........................................................................121
10.4 Survival of Representations and Warranties...........................................................121
10.5 Payment of Expenses and Taxes.............................................................................121
10.6 Successors and Assigns; Participations and Assignments......................................123
10.7 Adjustments; Set-off...............................................................................................126
10.8 Counterparts............................................................................................................127
10.9 Severability.............................................................................................................127
10.10 Integration...............................................................................................................127
10.11 Governing Law........................................................................................................127
10.12 Submission To Jurisdiction; Waivers......................................................................127
10.13 Acknowledgements.................................................................................................128
10.14 Releases of Guarantees and Liens...........................................................................129
10.15 Judgment Currency.................................................................................................129
10.16 Confidentiality........................................................................................................130
10.17 [Reserved]...............................................................................................................131
10.18 WAIVERS OF JURY TRIAL.................................................................................131
10.19 USA Patriot Act.......................................................................................................131
10.20 Acknowledgement and Consent to Bail-In of EEA Financial Institutions..............131
10.21 Additional Borrowers...............................................................................................132
10.22 Acknowledgement Regarding Any Supported QFCs...............................................132
10.23 Certain ERISA Matters.............................................................................................133



SCHEDULES:
1.1A     Commitments
1.1C    Specified Time
1.1D    Administrative Schedule
3.1(c)    Existing Letters of Credit
4.15(a)    Subsidiaries
7.2    Existing Indebtedness
7.3    Existing Liens
7.7    Existing Investments
7.11    Existing Burdensome Transactions

EXHIBITS:
A    [Reserved]
B    Form of Compliance Certificate
C    Form of Closing Certificate
D    Form of Mortgage
E    Form of Assignment and Assumption
F     Form of U.S. Tax Compliance Certificate
G     [Reserved]
H     Form of Borrowing Notice
I    [Reserved]
J-1    Form of Additional Borrower Joinder Agreement for Domestic Subsidiaries
J-2    Form of Additional Borrower Joinder Agreement for Foreign Subsidiaries
K    Form of Foreign Guarantee Agreement





AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as of October 16, 2019, among Tempur Sealy International, Inc., a Delaware corporation (the “Parent Borrower”), the Additional Borrowers (as defined below) from time to time parties to this Agreement, the several banks and other financial institutions or entities from time to time parties to this Agreement (the “Lenders”) and JPMORGAN CHASE BANK, N.A., as administrative agent.
RECITALS
Pursuant to the Amendment and Restatement Agreement and upon the terms and subject to the satisfaction of the conditions set forth therein, the Existing Credit Agreement is being amended and restated in the form of this Agreement (such terms and other capitalized terms used in these preliminary statements being defined in Section 1.1 hereof).
In consideration of the mutual covenants and agreements herein contained, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1    Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.
2020 Term Commitment”: as to any 2020 Term Lender, the obligation of such 2020 Term Lender to make ana 2020 Term Loan to the applicable Borrower hereunder on the Amendment No. 1 Effective Date in a principal amount not to exceed the amount set forth under the heading “2020 Term Commitment” opposite such 2020 Term Lender’s name on Schedule 1.01A. The aggregate amount of the 2020 Term Commitments of the 2020 Term Lenders as of the Amendment No. 1 Effective Date is $200,000,000.
2020 Term Facility”: the 2020 Term Commitments and the 2020 Term Loans made available thereunder.
2020 Term Facility Termination Date”: the date on which all Obligations in respect of the 2020 Term Loans have been paid in full.
2020 Term Lender”: as defined in Section 2.1(b).
2020 Term Loan”: as defined in Section 2.1(b).
2020 Term Loan Maturity Date”: May 12, 2021.
2020 Term Percentage”: as to any 2020 Term Lender at any time, the percentage which the aggregate principal amount of such Lender’s 2020 Term Loans then outstanding constitutes of the aggregate principal amount of all 2020 Term Loans then outstanding.
“2021 Delayed Draw Funding Date”: the date on which the conditions precedent set forth in Section 5.4 have been satisfied, which date shall be no later than the six-month anniversary of the Amendment No. 4 Effective Date.
“2021 Delayed Draw Term Commitment”: as to any 2021 Delayed Draw Term Lender, the obligation of such 2021 Delayed Draw Term Lender to make a 2021 Delayed Draw Term Loan to



Tempur-Pedic Management, LLC, as an Additional Borrower hereunder, on the 2021 Delayed Draw Funding Date in a principal amount not to exceed the amount set forth under the heading “2021 Delayed Draw Term Commitment” opposite such 2021 Delayed Draw Term Lender’s name on Schedule 1.1A. The aggregate amount of the 2021 Delayed Draw Term Commitments of the 2021 Delayed Draw Term Lenders as of the Amendment No. 4 Effective Date is $300,000,000.
“2021 Delayed Draw Term Commitment Termination Date”: as defined in Section 2.1(d).
“2021 Delayed Draw Term Facility”: the 2021 Delayed Draw Term Commitments and the 2021 Delayed Draw Term Loans made available thereunder.
“2021 Delayed Draw Term Lender”: as defined in Section 2.1(d).
“2021 Delayed Draw Term Loan”: as defined in Section 2.1(d).
“2021 Delayed Draw Term Percentage”: as to any 2021 Delayed Draw Term Lender at any time, the percentage which the aggregate principal amount of such Lender’s 2021 Delayed Draw Term Loans then outstanding constitutes of the aggregate principal amount of all 2021 Delayed Draw Term Loans then outstanding.
“2021 Delayed Draw Ticking Fee”: as defined in Section 2.8.
2023 Indenture”: the Indenture, dated as of September 24, 2015, among the Parent Borrower, certain subsidiaries of the Parent Borrower as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee.
“2026 Indenture”: the Indenture, dated as of May 24, 2016, among the Parent Borrower, certain subsidiaries of the Parent Borrower as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee.
20232026 Senior Notes”: the 5.6255.50% Senior Notes of the Parent Borrower due 20232026 issued on SeptemberMay 24, 20152016 pursuant to the 20232026 Indenture.
20262029 Indenture”: the Indenture, dated as of May 24March 25, 20162021, among the Parent Borrower, certain subsidiaries of the Parent Borrower as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee.
20262029 Senior Notes”: the 5.504.00% Senior Notes of the Parent Borrower due 20262029 issued May 24, 2016March 25, 2021 pursuant to the 20262029 Indenture.
ABR”: for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Eurocurrency Rate that would be calculated as of the Specified Time on such day (or, if such day is not a Business Day, as of the next preceding Business Day) in respect of a proposed Eurocurrency Loan in Dollars with a one-month Interest Period plus 1.0%. Any change in the ABR due to a change in the Prime Rate, the NYFRB Rate or such Eurocurrency Rate shall be effective as of the opening of business on the day of such change in the Prime Rate, the NYFRB Rate or such Eurocurrency Rate, respectively. If the ABR is being used as an alternate rate of interest pursuant to Section 2.17, then the ABR shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For avoidance of doubt, if the ABR



as determined pursuant to the foregoing would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
ABR Loans”: Loans the rate of interest applicable to which is based upon the ABR.
Additional Borrower”: (i) as of the Amendment and Restatement Effective Date, Tempur-Pedic Management, LLC and (ii) subject to Section 10.21(b), any Subsidiary that has become a party hereto as a borrower in accordance with Section 10.21(a); provided that, for the avoidance of doubt, no Subsidiary shall be an Additional Borrower hereunder unless and until the Parent Borrower and such Subsidiary have executed and delivered an Additional Borrower Joinder Agreement and the other conditions set forth in Section 5.3 have been satisfied with respect to such Additional Borrower.
Additional Borrower Joinder Agreement”: the Joinder Agreement to be executed and delivered by the Parent Borrower and any Additional Borrower that is not a party to this Agreement as of the Amendment and Restatement Effective Date, substantially in the form of Exhibit J-1 or J-2, as applicable.
Additional Credit Extension Amendment”: an amendment to this Agreement (which may, at the option of the Administrative Agent in consultation with the Parent Borrower, be in the form of an amendment and restatement of this Agreement) providing for any Incremental Term Loans, and/or Incremental Revolving Commitments pursuant to Section 2.25, Extended Term Loans and/or Extended Revolving Commitments pursuant to Section 2.28 or Refinancing Term Loans and/or Replacement Revolving Commitments pursuant to Section 2.29, which shall be consistent with the applicable provisions of this Agreement and otherwise satisfactory to the parties thereto. Each Additional Credit Extension Amendment shall be executed by the Administrative Agent, the Issuing Lenders and/or the Swingline Lender (to the extent Section 10.1 would require the consent of the Issuing Lenders and/or the Swingline Lender, respectively, for the amendments effected in such Additional Credit Extension Amendment), the Loan Parties and the other parties specified in the applicable Section of this Agreement (but not any other Lender). Any Additional Credit Extension Amendment may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions in Section 5.1 or 5.2 to the extent reasonably requested by the Administrative Agent or the other parties to such Additional Credit Extension Amendment.
Adjustment Date”: as defined in the Applicable Pricing Grid.
Administrative Agent”: JPMorgan Chase Bank, N.A., together with its affiliates, as the administrative agent for the Lenders under this Agreement and the other Loan Documents, together with any of its successors.
Administrative Schedule”: Schedule 1.1D to this Agreement, which contains administrative information in respect of (i) each Foreign Currency and each Foreign Currency Loan and (ii) each L/C Foreign Currency and each Letter of Credit denominated in an L/C Foreign Currency.
Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution.
Affiliate”: 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.
Agent Indemnitee”: as defined in Section 9.7.
Aggregate Exposure”: with respect to any Lender at any time, an amount equal to the sum of (i) the aggregate then unpaid principal amount of such Lender’s Term Loans and, (ii) such Lender’s 2021 Delayed Draw Term Commitments then in effect and (iii) the amount of such Lender’s Revolving Commitment then in effect or, if the Revolving Commitments have been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding.
Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such time.
Aggregate Incremental Amount”: at any time, the sum of the aggregate principal amount of (a) Incremental Facilities incurred at or prior to such time (assuming all Incremental Revolving Commitments and Incremental Term Commitments established at or prior to such time are fully drawn) and (b) Permitted Incremental Equivalent Debt incurred at or prior to such time.
Agreement”: as defined in the preamble hereto.
Amendment and Restatement Agreement”: the Amendment and Restatement Agreement, dated as of Amendment and Restatement Effective Date, among the Loan Parties, the Lenders party thereto, the Administrative Agent, the Issuing Lenders and the Swingline Lenders.
Amendment and Restatement Date Refinancing”: (i) repayment in full of all amounts outstanding under the Existing Credit Agreement, and in each case all accrued interest thereon and other fees and amounts outstanding in respect thereof, (ii) termination of the commitments thereunder and (iii) the receipt by the Administrative Agent of reasonably satisfactory evidence of the foregoing.
Amendment and Restatement Effective Date”: October 16, 2019.
Albuquerque Bond Indenture”: that certain Trust Indenture, as amended and modified, among Bernalillo County, New Mexico, as issuer, and The Bank of New York Trust Company, N.A., as trustee, pursuant to which the Albuquerque Bonds may be issued.
Albuquerque Bonds”: the Bernalillo County, New Mexico Taxable Fixed Rate Unsecured Industrial Revenue Bonds (Tempur Production USA, Inc. Project), Series 2005B, in the aggregate principal amount of up to $25,000,000 under the Albuquerque Bond Indenture, and sometimes referred to in the Albuquerque Bond Indenture as the “Self-Funded Bonds” representing the Parent Borrower’s “equity” in the Albuquerque Project.
Albuquerque IRB Financing”: the financing for the Albuquerque Project, including the Albuquerque Bonds, the Albuquerque Bond Indenture and the other bond documents referenced therein and relating thereto.
Albuquerque Project”: has the meaning given the term “Project” in the Albuquerque Bond Indenture.



Albuquerque Property” means the real property located at 12907 Tempur-Pedic Parkway, Albuquerque, NM 87121.
Amendment No. 1”: Amendment No. 1, dated as of Amendment No 1 Effective Date, among the Loan Parties, the Lenders party thereto and the Administrative Agent.
Amendment No. 1 Effective Date”: May 13, 2020.
Amendment No. 3 Effective Date”: February 2, 2021.
“Amendment No. 4 Effective Date”: May 26, 2021
Anti-Corruption Laws”: all laws, rules, and regulations of any jurisdiction applicable to the Parent Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.
Applicable Margin”: (a) for each Type of Loan, other than the 2020 Term Loans, the 2021 Delayed Draw Term Loans and Incremental Term Loans, the rate per annum set forth under the relevant column heading below:
ABR LoansEurocurrency Loans
Revolving Loans0.625%1.625%
Swingline Loans0.625%N/A
Initial Term Loans0.625%1.625%
; provided that on and after the first Adjustment Date occurring immediately after the Amendment and Restatement Effective Date, the Applicable Margin with respect to Revolving Loans, Swingline Loans and Initial Term Loans will be determined pursuant to the Applicable Pricing Grid;
(b) for the 2020 Term Loans, (i) for ABR Loans, 1.375% per annum and (ii) for Eurocurrency Loans, 2.375% per annum; and
(c) for the 2021 Delayed Draw Term Loans, such per annum rates as determined pursuant to the Applicable Pricing Grid; and
(cd) for Incremental Term Loans (other than the 2020 Term Loans or 2021 Delayed Draw Term Loans), such per annum rates as shall be agreed to by the Parent Borrower and the applicable Incremental Term Lenders as shown in the applicable Additional Credit Extension Amendment.
Applicable Pricing Grid”: with respect to Initial Term Loans, 2021 Delayed Draw Term Loans, 2021 Delayed Draw Term Commitments, Revolving Loans, Swingline Loans and the Commitment Fee Rate, the table set forth below:
LevelConsolidated Total Leverage RatioType of LoanCommitment Fee Rate
ABREurocurrency
Level I< 3.00:1.000.25%1.25%0.175%
Level II≥ 3.00:1.00 but < 3.50:1.000.375%1.375%0.20%



Level III≥ 3.50:1.00 but < 4.00:1.000.625%1.625%0.25%
Level IV≥ 4.00:1.00 but < 4.50:1.000.875%1.875%0.30%
Level V≥ 4.50:1.001.00%2.00%0.35%
For the purposes of the Applicable Pricing Grid, changes in the Applicable Margin resulting from changes in the Consolidated Total Leverage Ratio shall become effective on the date (the “Adjustment Date”) that is three Business Days after the date on which financial statements are delivered to the Administrative Agent pursuant to Section 6.1 commencing with the fiscal period ending December 31, 2019 and shall remain in effect until the next change to be effected pursuant to this paragraph. If any financial statements referred to above are not delivered within the time periods specified in Section 6.1, then, until the date that is three Business Days after the date on which such financial statements are delivered, the highest rate set forth in each column of the Applicable Pricing Grid shall apply. Each determination of the Consolidated Total Leverage Ratio pursuant to the Applicable Pricing Grid shall be made in a manner consistent with the determination thereof pursuant to Section 7.1(b).
Application”: an application, in such form as the applicable Issuing Lender may specify from time to time, requesting such Issuing Lender to open a Letter of Credit.
Approved Fund”: as defined in Section 10.6(b).
Arrangers”: the Lead Arrangers and Joint Bookrunners identified on the cover page of this Agreement.
Asset Sale”: any Disposition of property or series of related Dispositions of property permitted by any of clauses (b), (g) and (j) of Section 7.5 that yields gross proceeds to any Group Member (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $5,000,000.
Assignee”: as defined in Section 10.6(b).
Assignment and Assumption”: an Assignment and Assumption, substantially in the form of Exhibit E.
Australian Dollars” means the lawful currency of Australia.
Available Amount”: at any date, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to:
(a)    $125,000,000; plus
(b)    50% of the aggregate amount of Consolidated Net Income accrued during the period (treated as one accounting period) from September 30, 2012 to the end of the most recent fiscal quarter ending prior to the date of the Investment, Restricted Payment or prepayments, redemptions,



purchases, defeasance or other satisfaction of Junior Financing, as applicable, for which financial statements have been delivered under Section 6.1 (or if the aggregate amount of Consolidated Net Income for such period shall be a deficit, minus 100% of such deficit), plus
(c)     the aggregate net cash proceeds (including the fair market value of property other than cash) received by the Parent Borrower after December 19, 2012 from the issuance or sale (other than to a Subsidiary of the Parent Borrower or an employee stock ownership plan or trust established by the Parent Borrower or the Subsidiary for the benefit of their employees) by the Parent Borrower of its Capital Stock (other than Disqualified Capital Stock) after December 19, 2012, net of attorneys’ fees, accountants’ fees, initial purchasers’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with the issuance or sale and net of taxes paid or payable as a result thereof, plus
(d)    the sum of:
(A) the aggregate net cash proceeds received by the Parent Borrower or any Restricted Subsidiary from the issuance or sale after December 19, 2012 of convertible or exchangeable Indebtedness that has been converted into or exchanged for Capital Stock (other than Disqualified Capital Stock) of the Parent Borrower, and
(B) the aggregate amount by which Indebtedness of the Parent Borrower or any Restricted Subsidiary is reduced on the Parent Borrower’s consolidated balance sheet on or after September 24, 2015 upon the conversion or exchange of any Indebtedness issued or sold on or prior to September 24, 2015 that is convertible or exchangeable for Capital Stock (other than Disqualified Capital Stock) of the Parent Borrower, excluding, in the case of clause (A) or (B):
(x) any Indebtedness issued or sold to the Parent Borrower or a Subsidiary of the Parent Borrower or an employee stock ownership plan or trust established by the Parent Borrower or any Subsidiary for the benefit of their employees, and
(y) the aggregate amount of any cash or other assets distributed by the Parent Borrower or any Restricted Subsidiary upon any such conversion or exchange, plus
(e) an amount equal to the sum, without duplication, of (in each case to the extent not otherwise included in Consolidated Net Income):
(A) the net reduction in Investments in any Person other than the Parent Borrower or a Restricted Subsidiary resulting from dividends, repayments of loans or advances or other transfers of assets made after September 24, 2015, in each case to the Parent Borrower or any Restricted Subsidiary from that Person, less the cost of the disposition of those Investments,
(B) the fair market value of the Parent Borrower’s equity interest in an Unrestricted Subsidiary at the time the Unrestricted Subsidiary is designated a Restricted Subsidiary after the Amendment and Restatement Effective Date; and



(C) with respect to Investments made by the Parent Borrower and its Restricted Subsidiaries after December 19, 2012, an amount equal to the sum, without duplication, of the net reduction on such Investments in any sale of any such Investment to a purchaser other than the Parent Borrower or a Subsidiary of the Parent Borrower or the release of any guarantee (except to the extent any amounts are paid under such guarantee) that constituted an Investment, plus
(f) all dividends received in cash by the Parent Borrower or a Subsidiary Guarantor after December 19, 2012 from an Unrestricted Subsidiary of the Parent Borrower, to the extent such dividends were not otherwise included in Consolidated Net Income (other than to the extent such dividend represents a return of capital and the Investment in such Unrestricted Subsidiary was made pursuant to clause (b) of this definition or to the extent such Investment constituted a permitted Investment),
in each case, as such amount may be reduced from time to time to the extent that all or a portion of the Available Amount is applied to make Investments pursuant to Section 7.7(o), Restricted Payments pursuant to Section 7.6(d)(ii), prepayments, redemptions, purchases, defeasance or other satisfaction of Junior Financing pursuant to Section 7.8(a)(v) or any “Restricted Payment” referenced in Section 4.05(c) (preceding the language “Notwithstanding the foregoing limitation, the Company may:” in the 2023 Indenture) or Section 4.05(l) of the 2023 Indenture or the 2026 Indenture made after December 19, 2012 up to and excluding the Amendment and Restatement Effective Date.
Available Revolving Commitment”: as to any Revolving Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect over (b) such Lender’s Revolving Extensions of Credit then outstanding; provided, that in calculating any Lender’s Revolving Extensions of Credit for the purpose of determining such Lender’s Available Revolving Commitment pursuant to Section 2.8(a), the aggregate principal amount of Swingline Loans then outstanding shall be deemed to be zero.
Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
Bail-In Legislation”: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
Bankruptcy Event”: with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof; provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.



Beneficial Owner”: has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence from time to time of a subsequent condition.
Beneficial Ownership Certification”: a certification regarding individual beneficial ownership or control as required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.
Beneficial Ownership Regulation”: 31 C.F.R. § 1010.230.
Benefit Plan”: any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
Benefitted Lender”: as defined in Section 10.7(a).
Bilateral L/C Facilities”: bilateral letter-of-credit arrangements entered into by the Parent Borrower or any Restricted Subsidiary; provided that (a) such facilities are entered into with a Person that is a Lender or an Affiliate of a Lender at such time, (b) Indebtedness under such Bilateral L/C Facilities are permitted under Section 7.2(j)(y) and (c) the Parent Borrower or its Restricted Subsidiaries have designated such facility as a “Bilateral L/C Facility” by written notice to the Administrative Agent not later than 30 days after the entry thereof.
BHC Act Affiliate”: of a party means an “affiliate’ (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor).
Borrowers”: collectively, the Parent Borrower and the Additional Borrowers, if any. The parties acknowledge and agree that as of the Amendment and Restatement Effective Date the Parent Borrower and Tempur-Pedic Management, LLC are the sole Borrowers hereunder.
Borrowing Date”: any Business Day specified by applicable Borrower as a date on which such Borrower requests the relevant Lenders to make Loans hereunder.
Business”: as defined in Section 4.17(b).
Business Day”: 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 payments of principal and interest on, Eurocurrency Loans denominated in Dollars, such day is also a day for trading by and between banks in Dollar deposits in the London interbank eurodollar market and (ii) with respect to notices and determinations in connection with, and payments of principal and interest on, Loans denominated in a Foreign Currency (x)



such day is also a day for trading by and between banks in deposits for the applicable currency in the interbank eurocurrency market and London, (y) with respect to Loans denominated in Euros, such day is also a TARGET Day (as determined by the Administrative Agent) and (z) with respect to Loans denominated in a Foreign Currency other than Euros, such day is also a day on which banks are open for dealings in such currency in the city which is the principal financial center of the country of issuance of the applicable currency.
Calculation Date”: (a) with respect to any Loan denominated in any Foreign Currency, each of the following: (i) each Borrowing Date of such Loan and (ii) each date of a conversion into or continuation of such Loan pursuant to the terms of this Agreement; (b) with respect to any Letter of Credit denominated in an L/C Foreign Currency, each of the following: (i) the date on which such Letter of Credit is issued, (ii) the first Business Day of each calendar month and (iii) the date of any amendment of such Letter of Credit that has the effect of increasing the face amount thereof; and (c) any additional date as the Administrative Agent may determine at any time when an Event of Default exists.
Canadian Dollars”: the lawful currency of Canada.
Canadian Prime Rate”: on any day, the rate determined by the Administrative Agent to be the higher of (i) the rate equal to the PRIMCAN Index rate that appears on the Bloomberg screen at 10:15 a.m. Toronto time on such day (or, in the event that the PRIMCAN Index is not published by Bloomberg, any other information services that publishes such index from time to time, as selected by the Administrative Agent in its reasonable discretion) and (ii) CDOR plus 1% per annum; provided, that if any the above rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. Any change in the Canadian Prime Rate due to a change in the PRIMCAN Index or the CDOR shall be effective from and including the effective date of such change in the PRIMCAN Index or CDOR, respectively.
Canadian Prime Rate Loan”: Loans the rate of interest applicable to which is based upon the Canadian Prime Rate.
Capital Lease Obligations”: as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital or finance leases on a balance sheet of such Person under GAAP and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP; provided that, (x) the adoption or issuance of any accounting standards after the Closing Date will not cause any rental obligation that was not or would not have been a Capital Lease Obligation prior to such adoption or issuance to be deemed a Capital Lease Obligation and (y) for the avoidance of doubt, all obligations that are or would have been treated as operating leases for purposes of GAAP prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards Update (the “ASU”) (or any other Financial Accounting Standard having a similar result or effect) or shall continue to be accounted for as operating leases for purposes of all financial definitions and calculations for purposes of the Loan Documentation (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with the ASU (on a prospective or retroactive basis or otherwise) to be treated as capital or finance leases in the financial statements to be delivered pursuant to the Loan Documents.
Capital Stock”: 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.
Captive Insurance Subsidiary”: any Restricted Subsidiary of the Parent Borrower that is subject to regulation as an insurance company (or any Restricted Subsidiary thereof).
Cash Equivalents”: (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition, (b) U.S. dollar denominated deposit accounts, time deposits and certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (collectively, an “Approved Bank”), in each case with maturities of not more than 364 days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within twelve months of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank or trust company or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least one hundred percent (100%) of the amount of the repurchase obligations, (e) Investments (classified in accordance with GAAP as current assets) in money market investment programs registered under the Investment Company Act of 1940 that are administered by reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing subclauses hereof, and (f) other short-term investments utilized by Foreign Restricted Subsidiaries in accordance with normal investment practices for cash management in investments of a type analogous to the foregoing.
Cash Management Agreement”: any agreement providing for treasury management, pooling arrangements, overdraft or netting facilities, depositary, purchasing card or cash management services, including in connection with any automated clearing house transfers of funds or any similar transactions.
CDOR”: in relation to any Loan denominated in Canadian Dollars:
(a)     the applicable Screen Rate; or
(b)    (if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan,
as of, in the case of paragraph (a) above, the Specified Time on the Quotation Day for Canadian Dollars and for a period equal in length to the Interest Period of that Loan.
CDOR Loans”: Loans denominated in Canadian Dollars at the rate of interest applicable to which is based on the CDOR.
CFC”: a “controlled foreign corporation” within the meaning of Section 957 of the Code, as to which the Parent Borrower or another member of the Parent Borrower’s consolidated tax group is a U.S. shareholder described in Section 951(a).



CFC Debt”: as defined in the definition of “Foreign Holding Company”.
Change of Control”: any of the following
(i) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Parent Borrower and its Subsidiaries, taken as a whole, to any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act);
(ii) the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any “person” (as defined above), becomes the Beneficial Owner, directly or indirectly, of more than 35% of the voting Capital Stock of the Parent Borrower, measured by voting power rather than number of shares;
(iii) the first day on which a majority of the members of the board of directors of the Parent Borrower are not Continuing Directors;
(iv) the Parent Borrower consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Parent Borrower, in any such event pursuant to a transaction in which any of the outstanding voting Capital Stock of the Parent Borrower or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the voting Capital Stock of the Parent Borrower outstanding immediately prior to such transaction is converted into or exchanged for voting Capital Stock (other than Disqualified Capital Stock) of the surviving or transferee Person constituting a majority of the outstanding shares of such voting Capital Stock of such surviving or transferee Person (immediately after giving effect to such issuance);
(v) any Borrower (other than the Parent Borrower) shall cease to be a direct or indirect Wholly Owned Subsidiary of the Parent Borrower (unless otherwise permitted hereunder, in which case such Person shall cease to be a Borrower hereunder); or
(vi) a “change in control” as defined in the Senior Notes, any Junior Financing or any other Indebtedness of the Parent Borrower or its Restricted Subsidiaries in an aggregate principal amount in excess of $50,000,000.
Class”: when used in reference to any Loan or borrowing, refers to whether such Loan or the Loans comprising such borrowing are 2021 Delayed Draw Term Loans, 2020 Term Loans, Initial Term Loans or Revolving Loans, as applicable, or when used in reference to any Commitment, refers to whether such Commitment is a 2021 Delayed Draw Term Commitment, 2020 Term Commitment, Initial Term Commitment or Revolving Commitment, as applicable.
Closing Date”: April 6, 2016.
Code”: the Internal Revenue Code of 1986, as amended.
Collateral”: all property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is or is purported to be created by any Security Document; provided that the Collateral shall not include any Excluded Collateral.



Commitment”: as to any Lender, the sum of the Term Commitments and the Revolving Commitments of such Lender.
Commitment Fee Rate”: 0.25% per annum; provided, that on and after the first Adjustment Date occurring immediately after the Amendment and Restatement Effective Date, the Commitment Fee Rate will be determined pursuant to the Applicable Pricing Grid.
Committed L/C Commitment”: on and after the Amendment No. 3 Effective Date, as to any Issuing Lender, the obligation of such Issuing Lender, if any, to issue Letters of Credit pursuant to Section 3.1 in an aggregate amount not to exceed the amount set forth under the heading “Committed L/C Commitment” opposite such Issuing Lender’s name on Schedule 1.1A or in the Assignment and Assumption pursuant to which such Lender became a party hereto.
Commodity Exchange Act”: the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
Compliance Certificate”: a certificate duly executed by a Responsible Officer substantially in the form of Exhibit B.
Confidential Information Memorandum”: the Confidential Information Memorandum dated September 2019 and furnished to certain Lenders.
Consolidated EBITDA”: for any period for the Parent Borrower and its Restricted Subsidiaries:
(a) Consolidated Net Income for such period, plus
(b) without duplication and to the extent deducted in determining such Consolidated Net Income for such period, the sum of:
(1) Consolidated Interest Expense for such period,
(2) consolidated income tax expense for such period,
(3) all amounts attributable to depreciation and amortization (including amortization of deferred financing fees) for such period,
(4) costs, fees, expenses or premiums paid during such period in connection with (A) the incurrence of Indebtedness by the Parent Borrower or its Restricted Subsidiaries and (B) amendments, waivers, modifications or repayments of this Agreement or other Indebtedness,
(5) non-cash charges (other than (x) the write-down of current assets, (y) accrual of liabilities in the ordinary course of business and (z) any non-cash charge representing an accrual or reserve for cash expenses in a future period) for such period,
(6) any expense or charges incurred during such period in connection with any permitted issuance of Indebtedness, equity securities or any refinancing transactions, and
(7) the amount of “run rate” cost savings, operating expense reductions and synergies projected by the Parent Borrower in good faith to be realized during such period (calculated on a pro



forma basis as though such items had been realized on the first day of such period) as a result of actions taken or with respect to which substantial steps have been taken in connection with Permitted Acquisitions or other Purchase permitted by this Agreement, net of the amount of actual benefits realized during such period that are otherwise included in the calculation of Consolidated EBITDA from such Permitted Acquisitions or such permitted Purchase; provided that (A) such cost savings, operating expense reductions and synergies are reasonably expected to be realized (as determined in good faith by the Parent Borrower) and such actions are to be taken and the results with respect thereto are to be achieved within 18 months after the consummation of the Permitted Acquisition or such permitted Purchase which is expected to result in such cost savings, operating expense reductions or synergies; (B) the aggregate amount to be added back pursuant to this clause (b)(7) shall not exceed 5% of Consolidated EBITDA for such period (prior to giving effect to any adjustment pursuant to this clause (b)(7)) and shall not exceed, in the aggregate with amounts added back pursuant to clause (a) of the definition of “Consolidated Net Income” for such period, the Shared Addback Cap; and (C) no cost savings, operating expense reductions and synergies shall be added pursuant to this clause (b)(7) to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period, minus
(c) without duplication:
(1) all cash payments made during such period on account of non-cash charges added back pursuant to clause (b)(5) above in a previous period and
(2) to the extent included in determining such Consolidated Net Income, any unusual or non-recurring gains and all non-cash items of income for such period,
all determined on a consolidated basis in accordance with GAAP.
Consolidated Indebtedness”: as of any date of determination, the aggregate amount of all Indebtedness of the Parent Borrower and its Restricted Subsidiaries as of such date determined on a consolidated basis in accordance with GAAP (other than any Indebtedness incurred under Section 7.2(t)); provided that Consolidated Indebtedness shall not include (i) Escrow Debt until such time as the proceeds of such Escrow Debt have been released from the applicable escrow account or other escrow arrangement, (ii) any negative outstanding balance under any cash pooling arrangement to which the Parent Borrower or any of its Restricted Subsidiaries is a party, (iii) any outstanding undrawn Letters of Credit up to an aggregate principal amount of $40,000,000 (calculated, in the case of Letters of Credit denominated in an L/C Foreign Currency, based on the Dollar Equivalent thereof) and (iv) obligations in respect of Swap Agreements entered into in the ordinary course of business and not for speculative purposes.
Consolidated Interest Coverage Ratio”: for any period, the ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for such period.
Consolidated Interest Expense”: for any period for the Parent Borrower and its Restricted Subsidiaries, all interest expense determined on a consolidated basis in accordance with GAAP, but in any event, including the interest component under Capital Lease Obligations and the implied interest component under Qualified Receivables Transactions and excluding (i) non-cash interest costs of a one-time or non-recurring nature, (ii) commissions, discounts, yield, and other fees and charges related to Qualified Receivables Transactions, (iii) any premiums or other breakage costs (including interest rate hedge termination costs) in connection with the purchase or redemption of any Indebtedness



(including the 2023 Notes and the 2026 Notes) to the extent such payments are classified, characterized, reclassified or recharacterized as interest expenses and (iv) any writeoff of unamortized debt issuance costs upon any prepayment or redemption of any Indebtedness.
Consolidated Net Income”: for any period for the Parent Borrower and its Restricted Subsidiaries, net income (or loss) determined on a consolidated basis in accordance with GAAP, but excluding:
(a) unusual or non-recurring charges for such period, including restructuring charges or reserves, severance, relocation costs and one-time compensation charges (including, without limitation, retention bonuses) and other costs relating to the closure of facilities or impairment of facilities; provided that the aggregate amount added back pursuant to this clause (a) shall not exceed, for any period of four consecutive fiscal quarters, together with any amounts added back pursuant to clause (b)(7) of the definition of “Consolidated EBITDA” for such period, the Shared Addback Cap;
(b) the non-cash effects of purchase accounting under Accounting Standards Codification of the Financial Accounting Standards Board 805;
(c) any deduction for income (or addition for losses) attributable to the minority equity interests of third parties in any Restricted Subsidiary except, in the case of income, to the extent of dividends paid in respect of such period to the holder of such minority equity interest;
(d) any gain (or loss) realized upon the sale or other disposition of any property of the Parent Borrower or any of its Restricted Subsidiaries (including pursuant to any Sale and Leaseback Transaction) that is not sold or otherwise disposed of in the ordinary course of business;
(e) any gain or loss attributable to the early extinguishment of Indebtedness;
(f) any extraordinary gain or loss or cumulative effect of a change in accounting principles to the extent disclosed separately on the consolidated statement of income;
(g) any unrealized gains or losses of the Parent Borrower or its Restricted Subsidiaries on any Swap Obligations;
(h) the undistributed earnings of any Restricted Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary is not at the time permitted by the terms of any agreement, instrument, contract or other undertaking to which such Restricted Subsidiary is a party or by which any of its property is bound or any law, treaty, rule, regulation or determination of an arbitrator or a court of competent jurisdiction or other Governmental Authority, in each case, applicable or binding upon such Restricted Subsidiary or any of its property or to which such Restricted Subsidiary or any of its property is subject;
(i) costs, fees, expenses or premiums incurred during such period in connection with the Transactions;
(j) costs, fees and expenses incurred during such period in connection with acquisitions (whether or not consummated), or other Investments consisting of acquisitions of assets or equity constituting a business unit, line of business, division or entity (whether or not consummated) and dispositions of property (whether or not consummated), other than dispositions, to the extent considered Dispositions, of property effected in the ordinary course of business;



(k) cash and non-cash charges for such period to the extent representing the write-down of receivables or trade payables of a third party customer in an aggregate amount (for all such amounts added back pursuant to this clause (k)) not to exceed $35,000,000 for any period of four consecutive fiscal quarters, provided that the Parent Borrower reasonably expects, in the good faith judgment of management, to acquire or make an Investment in the assets or equity of such customer;
(l) direct and indirect costs, fees, expenses and charges (including initial floor model discounts and charges associated with any related terminations of contracts with other customers or the bankruptcy or insolvency of other customers) incurred during such period in connection with establishing or pursuing a business relationship with Mattress Firm, Inc., provided that the Parent Borrower furnishes to the Administrative Agent, concurrently with the delivery of financial statements pursuant to Section 6.1, management’s good faith estimate of such costs, fees, expenses and charges incurred during such period; provided further that all cash amounts added back pursuant to this clause (l) shall not exceed $30,000,000 in the aggregate for all such amounts; and
(m) non-cash charges in connection with stock-based compensation.
Notwithstanding the foregoing, any net income (loss) of any Person (other than the Parent Borrower) that is not a Restricted Subsidiary shall be excluded in calculating Consolidated Net Income, except that the Parent Borrower’s equity in the net income of any such Person for any period shall be included, without duplication, in such Consolidated Net Income up to the aggregate amount of cash distributed by the Person during such period to the Parent Borrower or a Restricted Subsidiary as a dividend or distribution.
Consolidated Secured Leverage Ratio”: as of any date of determination, the ratio of (a) (x) the Consolidated Indebtedness secured by Liens on any assets of the Parent Borrower or such Restricted Subsidiaries at the date of determination (on a pro forma basis reflecting any incurrence of Indebtedness and repayment of Indebtedness made on such date), less (y) the aggregate amount (not to exceed $200,000,000) of Netted Cash on such date of determination, to (b) the aggregate amount of Consolidated EBITDA for the Parent Borrower for the four full fiscal quarters, treated as one period, ending prior to the date of determination and for which financial statements of the Parent Borrower are delivered under Section 6.1.
Consolidated Total Assets”: as of any date, the total assets of the Parent Borrower and its Restricted Subsidiaries, calculated in accordance with GAAP on a consolidated basis as of such date.
Consolidated Total Leverage Ratio”: as of any date of determination, the ratio of:
(a) (x) Consolidated Indebtedness at the date of determination (on a pro forma basis reflecting any incurrence of Indebtedness and repayment of Indebtedness made on such date), less (y) the aggregate amount (not to exceed $200,000,000) of Netted Cash on such date of determination, to (b) the aggregate amount of Consolidated EBITDA for the Parent Borrower for the four full fiscal quarters, treated as one period, ending prior to such date of determination and for which financial statements of the Parent Borrower have been delivered pursuant to Section 6.1.
Continuing Directors”: as of any date of determination, any member of the board of directors of the relevant Person who:
(a)    was a member of such board of directors on the date of this Agreement; or



(b)    was nominated for election or elected to such board of directors with the approval of a majority of the Continuing Directors who were members of such board of directors at the time of such nomination or election.
Contractual Obligation”: 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.
Covered Entity”: any of the following:
(i)    a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii)    a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii)    a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
Covered Party: as defined in Section 10.22.
Credit Agreement Refinancing Facilities”: (a) with respect to any Class of Revolving Commitments or Revolving Loans, Replacement Revolving Commitments or Replacement Revolving Loans and (b) with respect to any Class of Term Loans, Refinancing Term Loans.
Credit Agreement Refinancing Facility Lenders”: a Lender (including any New Lender) with a Replacement Revolving Commitment or outstanding Refinancing Term Loans.
Credit Party”: the Administrative Agent, each Issuing Lender, the Swingline Lender or any other Lender.
Danish Tax Assessment”: the income tax assessment from the Danish Tax Authority and any related assessment from the Danish Tax Authority for subsequent years and related interest and penalties, as described in the Parent Borrower’s Report on Form 10-K for the year ended December 31, 2018.
Danish Tax Authority”: SKAT, the Danish tax authority.
Default”: any of the events specified in Section 8, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
Default Rate”: as defined in Section 2.15(c).
Default Right”: as defined in, and interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
Defaulting Lender”: any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies



the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Parent Borrower or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit or Swingline Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (d) has, or has a direct or indirect parent company that has, become the subject of a Bankruptcy Event or a Bail-In Action.
Defeased Debt”: as defined in the definition of “Indebtedness”.
Designated Non-Cash Consideration”: non-cash consideration received by the Parent Borrower or a Restricted Subsidiary in connection with a Disposition pursuant to Section 7.5(b) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Parent Borrower delivered within two (2) Business Days of the date of consummation of such Disposition, setting forth the basis of such valuation.
Discretionary L/C Commitment”: on and after the Amendment No. 3 Effective Date, as to any Issuing Lender, the obligation of such Issuing Lender, in its sole discretion to issue Letters of Credit pursuant to Section 3.1 in an aggregate amount set forth under the heading “Discretionary L/C Commitment” opposite such Issuing Lender’s name on Schedule 1.1A or in the Assignment and Assumption pursuant to which such Lender became a party hereto.
Disposition”: with respect to any property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof. The terms “Dispose” and “Disposed of” shall have correlative meanings.
Disqualified Capital Stock”: any Capital Stock which, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Capital Stock that is not Disqualified Capital Stock and/or cash in lieu of fractional shares), pursuant to a sinking fund obligation or otherwise (except as a result of a change in control or asset sale so long as any right of the holders thereof upon the occurrence of a change in control or asset sale event shall be subject to the occurrence of the Termination Date), (b) is redeemable at the option of the holder thereof (other than solely for Capital Stock that is not Disqualified Capital Stock and/or cash in lieu of fractional shares), in whole or in part (except as a result of a change in control or asset sale so long as any right of the holders thereof upon the occurrence of a change in control or asset sale event shall be subject to the occurrence of the Termination Date), (c) requires the payment of any cash dividend or any other scheduled cash payment constituting a return of capital or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital Stock, in each case, prior to the date that is ninety-one (91) days after the Initial Maturity Date; provided that if such Capital Stock is issued to any plan for the benefit of employees of the Parent Borrower or its



Restricted Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Parent Borrower or its Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
Disregarded Entity”: any entity treated as disregarded as an entity separate from its owner under Treasury Regulations Section 301.7701-3.
Dollar Equivalent”: with respect to an amount denominated in any currency other than Dollars, the equivalent in Dollars of such amount determined at the Exchange Rate on the most recent Calculation Date.
Dollars” and “$”: dollars in lawful currency of the United States.
Domestic Subsidiary”: any Restricted Subsidiary of the Parent Borrower organized under the laws of any jurisdiction within the United States (or that is disregarded from such entity for U.S. federal income tax purposes).
Domestic Unrestricted Subsidiary”: any Unrestricted Subsidiary of the Parent Borrower organized under the laws of any jurisdiction within the United States.
EEA Financial Institution”: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority”: any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Environmental Laws”: any and all foreign, federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other Requirements of Law (including common law) or agreements with any Person, in each case regulating, relating to or imposing liability or standards of conduct concerning pollution, protection of human health or the environment or the management, disposal or release of, or exposure to, hazardous or toxic materials or substances, as now or may at any time hereafter be in effect.
ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time.
ERISA Affiliate”: any trade or business (whether or not incorporated) that, together with any Group Member, is treated as a single employer under Section 414 of the Code.
ERISA Event”: (a) the existence with respect to any Plan of a non-exempt Prohibited Transaction; (b) any Reportable Event; (c) the failure of any Group Member or ERISA Affiliate to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or



any failure by any Pension Plan to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived; (d) a determination that any Pension Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA); (e) the filing pursuant to Section 412 of the Code or Section 302 of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan; (f) the occurrence of any event or condition which would reasonably be expected to result in the termination of, or the appointment of a trustee to administer, any Pension Plan or the incurrence by any Group Member or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Pension Plan, including but not limited to the imposition of any Lien in favor of the PBGC or any Pension Plan; (g) the receipt by any Group Member or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Pension Plan or to appoint a trustee to administer any Pension Plan under Section 4042 of ERISA; (h) the failure by any Group Member or any of its ERISA Affiliates to make any required contribution to a Multiemployer Plan pursuant to Sections 431 or 432 of the Code; (i) the incurrence by any Group Member or any ERISA Affiliate of any liability with respect to the complete or partial withdrawal from any Pension Plan or Multiemployer Plan; (j) the receipt by any Group Member or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from a Group Member or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, Insolvent, in reorganization, in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA), or terminated (within the meaning of Section 4041A of ERISA); or (k) the failure by any Group Member or any of its ERISA Affiliates to pay when due (after expiration of any applicable grace period) any installment payment with respect to Withdrawal Liability under Section 4201 of ERISA.
Escrow Debt”: Indebtedness incurred in connection with any transaction permitted hereunder for so long as proceeds thereof have been deposited into an escrow account on customary terms to secure such Indebtedness or other escrow arrangement satisfactory to the Administrative Agent pending the application of such proceeds to finance such transaction.
EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
EURIBOR”: in relation to any Loan denominated in Euros:
(a)    the applicable Screen Rate; or
(b)    (if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan,
as of, in the case of paragraph (a) above, the Specified Time on the Quotation Day for euro and for a period equal in length to the Interest Period of that Loan.
Euro”: the single currency of participating member states of the European Union.
Eurocurrency Loans”: Loans the rate of interest applicable to which is based upon the Eurocurrency Rate.
Eurocurrency Rate”: with respect to each day during each Interest Period pertaining to a Eurocurrency Loan, either CDOR, EURIBOR or LIBOR, as applicable.



Eurocurrency Tranche”: the collective reference to Eurocurrency Loans under a particular Facility the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day).
Event of Default”: any of the events specified in Section 8, provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
Exchange Act”: the Securities Exchange Act of 1934, as amended.
Exchange Rate”: with respect to any non-Dollar currency on any date, the rate at which such currency may be exchanged into Dollars, as set forth on such date on the relevant Reuters currency page on the Business Day (New York City time) immediately preceding the date of determination or if such service ceases to be available or ceases to provide a rate of exchange for the purchase of Dollars with the non-Dollar currency, as provided by such other publicly available information service which provides that rate of exchange at such time in place of Reuters chosen by the Administrative Agent in its sole discretion (or if such services ceases to be available or ceases to provide such rate of exchange, the equivalent of such amount in Dollars as determined by the Administrative Agent using any method of determination it deems appropriate in its sole discretion).
Excluded Collateral”: as defined in the Guarantee and Collateral Agreement. For the avoidance of doubt, Excluded Collateral includes: (a) solely with respect to the Obligations or Guarantee Obligations of any U.S. Person (including any Guarantee Obligations with respect thereto), any property or assets of any Foreign Subsidiary (including any Capital Stock owned by a Foreign Subsidiary), (b) any property or assets of any Captive Insurance Subsidiary or Capital Stock thereof and (c) in the case of (i) Disregarded Entities the assets of which include stock in any Foreign Subsidiaries, (ii) Foreign Subsidiaries and (iii) Foreign Holdings Companies, voting Capital Stock in excess of 65% of the voting Capital Stock thereof. For the sake of clarity, no Excluded Collateral shall be required to be pledged to secure any Obligations or Guarantee Obligations of any U.S. Loan Party (including any Guarantee Obligations with respect thereto) under any Loan Document.
Excluded Foreign Subsidiary”: any (i) CFC, (ii) Subsidiary that is owned directly or indirectly by a CFC and (iii) Foreign Holding Company.
Excluded Subsidiary”: any (i) Excluded Foreign Subsidiary, (ii) Receivables Entity, (iii) Immaterial Subsidiary, (iv) Unrestricted Subsidiary, (v) Captive Insurance Subsidiary and (vi) any Restricted Subsidiary that is not a Wholly Owned Subsidiary.
Excluded Swap Obligation”: with respect to any Subsidiary Guarantor, (a) any Swap Obligation if, and to the extent that, and only for so long as, all or a portion of the guarantee of such Subsidiary Guarantor of, or the grant by such Subsidiary Guarantor of a security interest to secure, as applicable, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Subsidiary Guarantor’s failure to constitute an “eligible contract participant,” as defined in the Commodity Exchange Act and the regulations thereunder, at the time the guarantee of (or grant of such security interest by, as applicable) such Subsidiary Guarantor becomes or would become effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such Subsidiary Guarantor as specified in any agreement between the relevant Loan Parties and counterparty applicable to such Swap Obligation, and agreed by the Administrative Agent. If a Swap Obligation arises under a



master agreement governing more than one Swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swaps for which such guarantee or security interest is or becomes illegal.
Excluded Taxes”: any of the following Taxes imposed on or with respect to a Credit Party or required to be withheld or deducted from a payment to a Credit Party, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Credit Party being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender (such as a withholding tax levied on interest payments made to that Lender) with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Parent Borrower under Section 2.23) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.20, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Credit Party’s failure to comply with Section 2.20(f) and (d) any U.S. Federal withholding Taxes imposed under FATCA and (e) all penalties and interest with respect to any of the foregoing.
Existing Credit Agreement”: that certain Credit Agreement, dated as of April 6, 2016, as amended as of April 4, 2017, as further amended as of January 8, 2019, as further amended as of June 4, 2019 and as further amended prior to the date hereof, among the Parent Borrower, the several banks and other financial institutions or entities from time to time parties thereto and JPMorgan Chase Bank, N.A., as administrative agent.
Existing Letter of Credit”: each letter of credit issued prior to the Amendment and Restatement Effective Date by a Person that shall be an Issuing Lender hereunder as of the Amendment and Restatement Effective Date and listed on Schedule 3.1(c).
Extended Revolving Commitment”: any Class of Revolving Commitments the maturity of which shall have been extended pursuant to Section 2.28.
Extended Revolving Loans”: any Revolving Loans made pursuant to the Extended Revolving Commitments.
Extended Term Loans”: any Class of Term Loans the maturity of which shall have been extended pursuant to Section 2.28.
Extension”: as defined in Section 2.28(a).
Extension Offer”: as defined in Section 2.28(a).
Facility”: each of (a) the Initial Term Facility; (b) the 2020 Term Facility; (c) the 2021 Delayed Draw Term Facility; (d) the Revolving Commitments (including, if applicable, any Incremental Revolving Commitments) and the extensions of credit made thereunder (the “Revolving Facility”); (de) the Incremental Term Loans (other than the 2020 Term Loans and 2021 Delayed Draw Term Facility) (the “Incremental Term Facility”); and (ef) Credit Agreement Refinancing Facilities and the extensions of credit thereunder.



Factoring Indebtedness”: at any time, the amount at such time of outstanding receivables or similar obligations sold by the Parent Borrower or Restricted Subsidiaries pursuant to factoring agreements with a non-affiliated third party that would be characterized as principal with respect to Indebtedness if such factoring agreement were structured as a secured lending transaction rather than as a purchase of receivables.
FATCA”: Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b) of the Code, any applicable intergovernmental agreements with respect thereto, and any fiscal or regulatory legislation or rules adopted pursuant thereto.
Federal Funds Effective Rate”: for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB; provided, that if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
Fee Payment Date”: (a) the third Business Day following the last day of each March, June, September and December and (b) the last day of the Revolving Commitment Period.
Financial Covenant Increase Period”: as defined in Section 7.1(b).
Fixed Amount”: as defined in Section 1.2(l).
Fixed Incremental Amount”: as defined in the definition of “Incremental Cap”.
Flood Documents”: (a) a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination and confirmation that the Parent Borrower has received the notice required pursuant to Section 208.25(i) of Regulation H of the Board (if applicable) and (b) if any improvement comprising part of a Mortgaged Property is identified by the Federal Emergency Management Agency (or any successor agency) as being in a special flood hazard area with respect to which flood insurance has been made available under Flood Insurance Laws, a copy of, or a certificate as to coverage under, and a declaration page relating to, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws, each of which shall (A) be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (to the extent available), (B) identify the addresses of each property located in a special flood hazard area, (C) indicate the applicable flood zone designation, the flood insurance coverage and the deductible relating thereto, (D) provide that to the extent commercially available the insurer will give the Administrative Agent thirty (30) days written notice of cancellation or non-renewal and (E) shall be otherwise in form and substance reasonably satisfactory to the Administrative Agent (any such flood insurance, a “Flood Policy”).
Flood Insurance Laws”: collectively, (a) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (b) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (c) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.



Flood Policy”: has the meaning assigned to such term in the definition of “Flood Documents”.
Foreign Currency”: Canadian Dollars, Pounds Sterling, the Euro, Japanese Yen and any additional currencies determined after the Amendment and Restatement Effective Date by mutual agreement of the Parent Borrower, the Revolving Lenders and the Administrative Agent; provided each such currency is a lawful currency that is readily available, freely transferable and not restricted, able to be converted into Dollars and available in the London interbank deposit market.
Foreign Currency Loans”: as defined in Section 2.4(a).
Foreign Currency Sublimit”: $250,000,000.
Foreign Guarantee Agreement”: the Guarantee Agreement to be executed and delivered by any Additional Borrower and any of its Material Foreign Restricted Subsidiaries, substantially in the form of Exhibit K.
Foreign Holding Company”: any (i) Domestic Subsidiary all or substantially all of the assets of which consist of the Capital Stock of one or more CFCs and/or intercompany loans, indebtedness or receivables owed or treated as owed by one or more CFCs (“CFC Debt”), and (ii) Disregarded Entity all or substantially all of the assets of which consist of the Capital Stock of one or more Subsidiaries described in part (i) of this definition.
Foreign Loan Parties”: any Additional Borrower that is a Foreign Subsidiary and any other Foreign Subsidiary that is party to the Foreign Guarantee Agreement.
Foreign Plan”: each employee benefit plan (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA) that is not subject to US law and is maintained or contributed to by any Group Member.
Foreign Plan Event”: with respect to any Foreign Plan, (a) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required by applicable law or by the terms of such Foreign Plan; (b) the failure to register or loss of good standing with applicable regulatory authorities of any such Foreign Plan required to be registered; (c) the failure of any Foreign Plan to comply with any material provisions of applicable law and regulations or with the material terms of such Foreign Plan; or (d) the occurrence of any event or the existence of any circumstance which causes the termination or windup of a Foreign Plan or gives any Governmental Authority the discretion to order the termination or windup of a Foreign Plan.
Foreign Restricted Subsidiary”: any Restricted Subsidiary of the Parent Borrower that is a Foreign Subsidiary.
Foreign Subsidiary”: any Subsidiary of the Parent Borrower that is not a Domestic Subsidiary.
Funding Office”: the office of the Administrative Agent specified in Section 10.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Parent Borrower and the Lenders.



GAAP”: generally accepted accounting principles in the United States as in effect from time to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change (as defined below) occurring after the Amendment and Restatement Effective Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. “Accounting Change” refers to any change in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC. Notwithstanding any other provisions of this Agreement, the adoption or issuance of any accounting standards after the Closing Date will not cause any rental obligation that was not or would not have been a Capital Lease Obligation prior to such adoption or issuance to be deemed a Capital Lease Obligation.
General Amendment Effective Time”: as defined in Amendment No. 1.
Global Intercompany Note”: the Global Intercompany Note, dated as of the Amendment and Restatement Effective Date, executed by the Parent Borrower and its Restricted Subsidiaries, as amended, restated, supplemented or otherwise modified from time to time.
Governmental Authority”: 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).
Group Members”: the collective reference to the Parent Borrower and its respective Restricted Subsidiaries.
Guarantee and Collateral Agreement”: (i) the Amended and Restated Guarantee and Collateral Agreement, dated as of the Amendment and Restatement Effective Date, among the Parent Borrower, the Subsidiary Guarantors party thereto from time to time and JPMorgan Chase Bank, N.A. (as amended, restated, amended and restated, supplemented or otherwise modified from time to time) and (ii) any agreements or documentation reaffirming the guarantee provided under clause (i) above.
Guarantee Obligation”: as to any Person (the “guaranteeing person”), any obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing Person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to



purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Parent Borrower in good faith.
Immaterial Subsidiary”: at any date, a Restricted Subsidiary of the Parent Borrower that is not a Material Subsidiary; provided that in no event shall any Borrower be an Immaterial Subsidiary.
Impacted Interest Period”: with respect to any Screen Rate, an Interest Period which shall not be available at the applicable time.
Impacted Lender”: as defined in Section 2.19(h).
Incremental Cap”:
(a) $550,000,000 (the “Fixed Incremental Amount”); provided that the Specified Incremental Loans shall not be deemed to utilize the Fixed Incremental Amount, plus
(b) the amount of any voluntary prepayment of any Term Loan (other than Specified Incremental Loans) in accordance with Section 2.11 and the amount of any permanent reduction of any Revolving Commitment in accordance with Section 2.9, in each case, to the extent not funded with the proceeds of any long-term Indebtedness, plus
(c) an unlimited amount so long as, in the case of this clause (c), on the date of incurrence thereof on a pro forma basis after giving effect to the incurrence of the Incremental Facility or the Permitted Incremental Equivalent Debt, as applicable, the application of the proceeds thereof (without netting the cash proceeds thereof) and, in the case of any Incremental Revolving Loans, assuming a full drawing thereunder, the Consolidated Secured Leverage Ratio does not exceed 2.50 to 1.00 (the “Ratio Incremental Amount”);
provided that:
(1)    if the applicable Borrower concurrently incurs Indebtedness under any Incremental Facilities or Permitted Incremental Equivalent Debt using the Fixed Incremental Amount and the Ratio Incremental Amount, the incurrence of the portion of such Incremental Facilities or Permitted Incremental Equivalent Debt to be incurred under the Ratio Incremental Amount shall first be calculated without giving effect to any amounts concurrently incurred in reliance on the Fixed Incremental Amount, but giving full pro forma effect to the use of proceeds of all such Incremental Facilities or Permitted Incremental Equivalent Debt and related transactions (but without netting the proceeds thereof), and
(2)    if both the Fixed Incremental Amount and the Ratio Incremental Amount are available, and the applicable Borrower does not make an election, the applicable Borrower shall be deemed to have elected to use the Ratio Incremental Amount.
Incremental Facility”: as defined in Section 2.25(a).



Incremental Facility Activation Date”: any Business Day on which Parent Borrower, the other Loan Parties, the Administrative Agent, any Issuing Lender, the Swingline Lender, any Lender and New Lenders party thereto, as applicable, shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment in respect of an Incremental Facility.
Incremental Facility Closing Date”: any Business Day designated as such in an Additional Credit Extension Amendment in respect of an Incremental Facility.
Incremental Revolving Commitments”: as defined in Section 2.25(a).
Incremental Revolving Loans”: any revolving loans made pursuant to Section 2.25(a).
Incremental Term Commitments”: the commitments (if any) of Lenders (including New Lenders) to make Incremental Term Loans in accordance with Section 2.25(a) and the Incremental Term Loans in respect thereof.
Incremental Term Facility”: as defined in the definition of “Facility”.
Incremental Term Lenders”: (a) on any Incremental Facility Closing Date relating to Incremental Term Loans, the Lenders (including any New Lenders) signatory to the relevant Additional Credit Extension Amendment and (b) thereafter, each Lender that is a holder of an Incremental Term Loans.
Incremental Term Loans”: any term loans made pursuant to Section 2.25(a).
Incremental Term Maturity Date”: with respect to the Incremental Term Loans to be made pursuant to any Additional Credit Extension Amendment, the maturity date specified in such Additional Credit Extension Amendment, which date, except with respect to the Specified Incremental Loans, shall not be earlier than the final maturity of the Term Loans.
Incurrence-Based Amount”: as defined in Section 1.2(l).
Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than (i) current trade payables incurred in the ordinary course of such Person’s business and (ii) any earn-out, purchase price adjustment, indemnification or similar obligation of such Person until such obligations become a liability on the balance sheet of such Person in accordance with GAAP), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of bankers’ acceptances, letters of credit, surety bonds or similar arrangements, (g) the liquidation value of all Disqualified Capital Stock of such Person, (h) all Receivables Transaction Attributed Indebtedness of such Person, (i) all Synthetic Lease Attributed Indebtedness of such Person, (j) all Factoring Indebtedness of such Person, (k) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (j) above and (l) all obligations of the kind referred to in clauses (a) through (k) above secured by any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation; provided that the amount of such



Indebtedness will be the lesser of the fair market value of such asset at the date of determination and the amount of Indebtedness so secured, and (m) (i) for the purposes of Section 7.2 and 8(e) only, all obligations of such Person in respect of Swap Agreements and (ii) for purposes of the definition of “Consolidated Indebtedness”, all obligations in respect of Swap Agreements but excluding those entered into in the ordinary course of business and not for speculative purposes; provided that, in each case, the amount of “Indebtedness” included with respect to any such Swap Agreement shall be based on the net termination value thereof. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor; provided that Indebtedness shall not include any indebtedness that has been defeased in accordance with GAAP or defeased pursuant to the deposit of cash or Cash Equivalents (in an amount sufficient to satisfy all such indebtedness at maturity or redemption, as applicable, and all payments of interest and premium, if any) in a trust or account created or pledged for the sole benefit of the holders of such indebtedness, and subject to no other Liens, and the other applicable terms of the instrument governing such indebtedness (“Defeased Debt”).
Indemnified Taxes”: (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a) above, Other Taxes.
Indentures”: the collective reference to the 2023 Indenture and the 2026 Indenture.
Initial Maturity Date”: October 16, 2024; provided that to the extent the 2023 Senior Notes are outstanding as of the date that is 180 days prior to the stated maturity thereof, the Initial Maturity Date shall be such earlier date.
Initial Term Commitment”: as to any Initial Term Lender, the obligation of such Lender, if any, to make an Initial Term Loan to the applicable Borrower hereunder on the Amendment and Restatement Effective Date in a principal amount not to exceed the amount set forth under the heading “Initial Term Commitment” opposite such Lender’s name on Schedule 1.1A. The aggregate amount of the Initial Term Commitments of the Initial Term Lenders as of the Amendment and Restatement Effective Date was $425,000,000.
Initial Term Facility”: the Initial Term Commitments and the Initial Term Loans made available thereunder.
Initial Term Lender: as defined in Section 2.1(a).
Initial Term Loan”: as defined in Section 2.1(a).
Initial Term Percentage”: as to any Initial Term Lender at any time, the percentage which the aggregate principal amount of such Lender’s Initial Term Loans then outstanding constitutes of the aggregate principal amount of all Initial Term Loans then outstanding.
Insolvent”: with respect to any Multiemployer Plan, the condition that such plan is insolvent within the meaning of Section 4245 of ERISA.
Intellectual Property”: the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or



otherwise, including (i) copyrights and copyright licenses, (ii) patents and patent licenses, (iii) trademarks, service marks, domain names, and licenses in respect of any of the foregoing, and all goodwill associated therewith, (iv) technology, trade secrets, proprietary information, know-how and processes, (v) all registrations and applications for registration in respect of any of the foregoing, and (vi) all rights to sue at law or in equity for any past, present and future infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
Interest Payment Date”: (a) as to any ABR Loan (other than any Swingline Loan), the last day of each March, June, September and December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any Eurocurrency Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any Eurocurrency Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period, (d) as to any Loan (other than any Revolving Loan that is an ABR Loan and any Swingline Loan), the date of any repayment or prepayment made in respect thereof and (e) as to any Swingline Loan, the day that such Loan is required to be repaid.
Interest Period”: as to any Eurocurrency Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurocurrency Loan and ending seven days or one, two, three or six months thereafter (in each case to the extent quoted on the applicable Screen Rate page or successor), as selected by the applicable Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurocurrency Loan and ending seven days or one, two, three or six months thereafter (in each case to the extent quoted on the applicable Screen Rate page or successor), as selected by the applicable Borrower by irrevocable notice to the Administrative Agent not later than 12:00 P.M., Local Time, on the date that is three Business Days prior to the last day of the then current Interest Period with respect thereto; provided that, all of the foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;
(ii) no Borrower may select an Interest Period under a particular Facility that would extend beyond the applicable Maturity Date or beyond the date final payment is due on the relevant Term Loans, as the case may be; and
(iii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month.
With respect to the first Interest Period applicable to the 2021 Delayed Draw Term Loans after the 2021 Delayed Draw Funding Date, the Administrative Agent and the applicable Borrower may designate an Interest Period that is less than a full one, two or three month-period or an Interest Period with additional days to cause such 2021 Delayed Draw Term Loans to have Interest Periods that align with the other Term Loans then outstanding.
Interpolated Screen Rate”: at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the relevant Screen Rates) determined by the



Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the applicable Screen Rate (for the longest period for which the applicable Screen Rate is available for the applicable currency) that is shorter than the Impacted Interest Period and (b) the applicable Screen Rate for the shortest period (for which such Screen Rate is available for the applicable currency) that exceeds the Impacted Interest Period, in each case, as of the Specified Time on the Quotation Day for such Interest Period. Notwithstanding anything to the contrary in this Agreement, if any Interpolated Screen Rate shall be less than zero, such Interpolated Screen Rate shall be deemed to be zero for purposes of this Agreement.
Investment”: as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Capital Stock of another Person, (b) a loan, advance or capital contribution to, guaranty or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor undertakes any Support Obligation with respect to Indebtedness or other obligation of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
IRS”: the United States Internal Revenue Service.
Issuing Lender”: each of JPMorgan Chase Bank, N.A., Bank of America, N.A., Wells Fargo Bank, N.A. and Fifth Third Bank and any other Revolving Lender approved by the Administrative Agent and the Parent Borrower that has agreed in its sole discretion to act as an “Issuing Lender” hereunder, or any of their respective affiliates, in each case in its capacity as issuer of any Letter of Credit. Each reference herein to “the Issuing Lender” shall be deemed to be a reference to the relevant Issuing Lender.
Japanese Yen” means the lawful currency of Japan.
Judgment Currency”: as defined in Section 10.15(a).
Judgment Currency Conversion Date”: as defined in Section 10.15(a).
Junior Financing”: as defined in Section 7.8(a).
Kentucky Headquarters”: the real property located at 1000 Tempur Way, Lexington, Kentucky.
L/C Commitment”: on and after the Amendment and Restatement Effective Date, as to any Issuing Lender, the obligation of such Issuing Lender, if any, to issue Letters of Credit pursuant to Section 3.1 in an aggregate amount not to exceed the amounts set forth under the headings “Committed L/C Commitment” and “Discretionary L/C Commitment” opposite such Issuing Lender’s name on Schedule 1.1A or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The amount of the aggregate L/C Commitments on the Amendment and Restatement Effective Date is $60,000,000.
L/C Exposure”: at any time, the total L/C Obligations. The L/C Exposure of any Revolving Lender at any time shall be its Revolving Percentage of the total L/C Exposure at such time.



L/C Foreign Currency”: Canadian Dollars, Pounds Sterling, the Euro, Japanese Yen, New Zealand Dollars, Australian Dollars, Swiss Francs, Polish Zloty and any additional currencies determined after the Amendment and Restatement Effective Date by mutual agreement of the Parent Borrower, the Issuing Lenders and the Administrative Agent; provided each such currency is a lawful currency that is readily available, freely transferable and not restricted, able to be converted into Dollars and available in the London interbank deposit market.
L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.5.
L/C Participants”: with respect to any Letter of Credit, the collective reference to all the Revolving Lenders other than the applicable Issuing Lender in respect of such Letter of Credit.
Lender Parent”: with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a Subsidiary.
Lenders”: as defined in the preamble hereto, which, for the avoidance of doubt, shall include the Swingline Lender and/or each Issuing Lender, as the context may require.
Letters of Credit”: any letter of credit issued pursuant to this Agreement and each Existing Letter of Credit.
LIBOR”: in relation to any Loan (other than a Loan denominated in Canadian Dollars or Euros):
(a)    the applicable Screen Rate; or
(b)    (if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan,
as of, in the case of paragraph (a) above, the Specified Time on the Quotation Day for the currency of that Loan and for a period equal in length to the Interest Period of that Loan.
Lien”: 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, but not including any operating lease).
Limited Conditionality Acquisition”: as defined in Section 2.25(a).
Loan”: any loan made by any Lender pursuant to this Agreement.
Loan Documents”: this Agreement, the Amendment and Restatement Agreement, any Additional Credit Extension Amendment, Amendment No. 1, the Security Documents, the Foreign Guarantee Agreement and except for purpose of Section 10.1, the Global Intercompany Note and, the Notes, and any amendment, waiver, supplement or other modification to any of the foregoing.



Loan Parties”: the collective reference to the U.S. Loan Parties and the Foreign Loan Parties.
Local Time”: (a) with respect to Foreign Currency Loans and Letters of Credit denominated in Canadian Dollar, Euros, Pounds Sterling or Yen, local time in London, (b) with respect to Foreign Currency Loans denominated in currencies other than Canadian Dollars, Euros, Pounds Sterling and Yen and Letters of Credit denominated in L/C Foreign Currencies other than Canadian Dollars, Euros, Pounds Sterling and Yen, local time in the Principal Financial Center for the applicable currency and (b) with respect to any other Loans, local time in New York City. For purposes of this definition, “Principal Financial Center” means, in the case of any currency other than Dollars, the principal financial center where such currency is cleared and settled, as determined by the Administrative Agent.
Majority Facility Lenders”: with respect to any Facility, the holders of more than 50% of the aggregate unpaid principal amount of the applicable Term Loans and Term Commitments or the Total Revolving Extensions of Credit, as the case may be, outstanding under such Facility (or, in the case of the Revolving Facility, prior to any termination of the Revolving Commitments, the holders of more than 50% of the Total Revolving Commitments).
Material Acquisition”: as defined in the definition of “pro forma basis”.
Material Adverse Effect”: (a) a material adverse change in, or a material adverse effect upon, the operations, business, assets, properties, liabilities (actual or contingent) or financial condition of the Parent Borrower and its Subsidiaries, taken as a whole; (b) a material impairment of the ability of the Loan Parties, as a whole, to perform their payment obligations under the Loan Documents; or (c) a material adverse effect upon the legality, validity, binding effect or the enforceability against any Loan Party of any Loan Document to which it is a party or on the rights or remedies, taken as a whole, of the Administrative Agent or the Lenders hereunder or thereunder.
Material Disposition”: as defined in the definition of “pro forma basis”.
Material Foreign Restricted Subsidiary”: any Foreign Restricted Subsidiary that is a Material Subsidiary.
Material Real Property”: any owned real property located in the United States with a fair market value in excess of $15,000,000, as reasonably determined by the Parent Borrower (it being agreed that in no event shall an appraisal or other third-party valuation be required unless required by an applicable Requirement of Law).
Material Subsidiary”: as of any date of determination, any Restricted Subsidiary (a) whose total assets at the last day of the Reference Period ending on the last day of the most recent fiscal period for which financials have been delivered pursuant to Section 6.1(a) or (b) were equal to or greater than 5.0% of the Consolidated Total Assets of the Parent Borrower and its Subsidiaries at such date or (b) whose revenues during such Reference Period were equal to or greater than 5.0% of the consolidated revenues of the Parent Borrower and its Subsidiaries for such period, in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the Amendment and Restatement Effective Date, Subsidiaries that are not Material Subsidiaries have, in the aggregate, (i) total assets at the last day of the most recently ended Reference Period equal to or greater than 10.0% of the Consolidated Total Assets of the Parent Borrower and its Subsidiaries at such date or (ii) revenues during such Reference Period equal to or greater than 10.0% of the consolidated revenues of the Parent Borrower and its Subsidiaries for such period, in each case determined in accordance with GAAP, then the Parent



Borrower shall, no later than ten Business Days subsequent to the date on which financial statements for such fiscal period are delivered pursuant to this Agreement, designate in writing to the Administrative Agent one or more of such Subsidiaries as “Material Subsidiaries” such that, following such designation(s), Immaterial Subsidiaries have, in the aggregate (i) total assets at the last day of such Reference Period of less than 10.0% of the Consolidated Total Assets of the Parent Borrower and its Subsidiaries at such date and (ii) total revenues during such Reference Period of less than 10.0% of the consolidated revenues of the Parent Borrower and its Subsidiaries for such period, in each case determined in accordance with GAAP.
Materials of Environmental Concern”: any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes, including those defined or regulated as such in or under any Environmental Law, including asbestos, polychlorinated biphenyls, radon gas and urea-formaldehyde insulation.
Maturity Date”: (i) with respect to the Initial Term Loans, the 2021 Delayed Draw Term Loans and the Revolving Facility, the Initial Maturity Date and (ii) with respect to the 2020 Term Loans, the 2020 Term Loan Maturity Date.
Moody’s”: as defined in the definition of “Cash Equivalents”.
Mortgaged Properties”: (x) as of the Amendment and Restatement Effective Date, the Albuquerque Property and (y) any Material Real Property acquired by any Borrower or Subsidiary Guarantor that is a Domestic Subsidiary or owned by any Subsidiary Guarantor that is a Domestic Subsidiary acquired after the Amendment and Restatement Effective Date, as to which the Administrative Agent for the benefit of the Lenders shall be granted a Lien pursuant to the Mortgages.
Mortgages”: each of the mortgages and deeds of trust made by any U.S. Loan Party in favor of, or for the benefit of, the Administrative Agent for the benefit of the Lenders, substantially in the form of Exhibit D (with such changes thereto as shall be advisable under the law of the jurisdiction in which such mortgage or deed of trust is to be recorded or are otherwise reasonably acceptable to the Administrative Agent).
Multiemployer Plan”: a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
Net Cash Proceeds”: (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof received by the Parent Borrower or any Restricted Subsidiary in the form of cash, Cash Equivalents and marketable U.S. debt securities (determined in accordance with GAAP) (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) (provided, that with respect to marketable U.S. debt securities, such securities shall be included as Net Cash Proceeds only as and when the proceeds thereof are received), net of attorneys’ fees, accountants’ fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien permitted hereunder on any asset that is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document), survey costs, title insurance premiums and related search and recording charges and other customary fees and expenses actually incurred by the Parent Borrower or any such Restricted Subsidiary, as applicable, in connection therewith and net of taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements) and (b) in connection with any incurrence of Indebtedness by the Parent Borrower or any Restricted Subsidiary, the cash proceeds received from such issuance or



incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.
Netted Cash”: at any day, the aggregate amount of (i) domestic unrestricted cash and domestic cash equivalents of the Parent Borrower and its Domestic Subsidiaries and (ii) 100% of the aggregate amount of unrestricted cash and cash equivalents of Foreign Restricted Subsidiaries. For the avoidance of doubt, the term “cash equivalents” as set forth in this definition will be interpreted in accordance with GAAP.
New Lender”: at any time, any Person that is not an existing Lender and that agrees to provide any portion of any (a) Loans under Incremental Facilities, Incremental Revolving Commitments or Incremental Term Commitments in accordance with Section 2.25 or (b) Credit Agreement Refinancing Facilities pursuant to an Additional Credit Extension Amendment in accordance with Section 2.20; provided that such New Lender shall be (x) with respect to Incremental Term Loans, Incremental Term Commitments or Refinancing Term Loans, an eligible Assignee with respect to Term Loans and (y) with respect to Incremental Revolving Commitments or Replacement Revolving Commitments, an eligible Assignee with respect to Revolving Commitments.
New Zealand Dollars” means the lawful currency of New Zealand.
Non-Consenting Lender”: as defined in Section 2.23.
Non-Domestic Subsidiary”: any Subsidiary of the Parent Borrower that is not (a) a Domestic Subsidiary or (b) a Domestic Unrestricted Subsidiary. For the avoidance of doubt, the term “Non-Domestic Subsidiary” shall include each Foreign Subsidiary.
Non-U.S. Lender”: a Lender that is not a U.S. Person.
Notes”: the collective reference to any promissory note evidencing Loans.
NYFRB” means the Federal Reserve Bank of New York.
NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
Obligations”: the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and Reimbursement Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to any Loan Party, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Loan Parties to the Administrative Agent or to any Lender (or, in the case of Bilateral L/C Facilities, Specified Swap Agreements and Specified Cash Management Agreements, any affiliate of the Administrative Agent or any Lender), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, any Bilateral L/C Facility, any Specified Swap Agreement, any



Specified Cash Management Agreement or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid by any Loan Party pursuant hereto) or otherwise; provided that for purposes of determining any Guarantee Obligations of (i) any U.S. Loan Party pursuant to the Guarantee and Collateral Agreement, the definition of “Obligations” shall not create any guarantee by any U.S. Loan Party of (or grant of security interest by any U.S. Loan Party to support, if applicable) any Excluded Swap Obligations; and (ii) any Foreign Loan Party pursuant to the Foreign Guarantee Agreement, the definition of “Obligations” shall not create any guarantee by any Foreign Loan Party of any Excluded Swap Obligations.
Organization Documents”: (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.
Other Connection Taxes”: with respect to any Credit Party, Taxes imposed as a result of a present or former connection between such Credit Party and the jurisdiction imposing such Tax (other than connections arising from such Credit Party having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
Other Taxes”: all present or future stamp, court, or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.23).
Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurocurrency borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
Parent Borrower”: as defined in the preamble hereto.
Participant”: as defined in Section 10.6(c).
Participant Register”: as defined in Section 10.6(c).
Patriot Act”: as defined in Section 10.19.
PBGC”: the Pension Benefit Guaranty Corporation established pursuant to ERISA and any successor entity performing similar functions.



Pension Plan”: any Plan subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA.
Perfection Certificate”: a perfection certificate, executed and delivered by the Parent Borrower and each other U.S. Loan Party as of the Amendment and Restatement Effective Date.
Permitted Acquisition”: any Purchase that satisfies the following conditions:
(a)    in the case of an Purchase of 100% of the Capital Stock of any other Person (exclusive of director qualifying shares or similar shareholdings), the board of directors (or other comparable governing body) of such other Person shall have approved the Purchase;
(b)    (i) (x) no Default or Event of Default shall exist and be continuing immediately before or immediately after giving effect thereto on a pro forma basis or (y) at the election of the Parent Borrower, in the case of a Limited Conditionality Acquisition being funded with the proceeds of Incremental Term Loans hereunder, no Default or Event of Default shall exist and be continuing immediately before or immediately after giving effect thereto on a pro forma basis as of the date the definitive acquisition agreement for such Limited Conditionality Acquisition is entered into, (ii) (x) the Parent Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 as of the last day of the fiscal quarter of the Parent Borrower most recently ended for which financial statements have been delivered under Section 6.1, determined on a pro forma basis or (y) at the election of the Parent Borrower, in the case of a Limited Conditionality Acquisition being funded with the proceeds of Incremental Term Loans hereunder, the Parent Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 as herein provided on the date the definitive acquisition agreement for such Limited Conditionality Acquisition is entered into, determined on a pro forma basis as of such date and (iii) the Purchase Consideration paid to acquire a Person that will not be a Loan Party following the acquisition thereof, or to acquire property or assets that will not be owned by a Loan Party, together with all other such acquisitions, shall not exceed $450,000,000; and
(c)    within two (2) Business Days of the consummation of such Purchase, a Responsible Officer of the Parent Borrower shall provide a compliance certificate, in form and substance reasonably satisfactory to the Administrative Agent, affirming compliance with each of the items set forth in clauses (a) and (b) hereof, as applicable.
Permitted External Refinancing Debt”: any Indebtedness incurred by one or more of the Borrowers to refinance all or a portion of any existing Class of Term Loans in the form of one or more series of secured or unsecured debt securities or loans; provided that (i) the final maturity date of any such Indebtedness shall not be earlier than the date that is 91 days following the Initial Maturity Date; (ii) the terms of such Indebtedness shall not provide for any scheduled repayment, mandatory redemption, sinking fund obligations or other payment (other than periodic interest payments) prior to the date that is 91 days following the Initial Maturity Date, other than customary offers to purchase upon a change of control, asset sale or casualty or condemnation event and customary acceleration rights upon an event of default; (iii) such debt securities or loans shall be either (A) solely in the case of debt securities, secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations and shall not be secured by any property or assets of the Parent Borrower or any Restricted Subsidiary other than Collateral, and a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to a first lien intercreditor agreement or collateral trust agreement having customary terms and reasonably satisfactory to the Administrative Agent reflecting the pari passu status of the Liens securing such Indebtedness, (B) secured by the Collateral on a junior basis (including with



respect to the control of remedies) with the Obligations and shall not be secured by any property or assets of the Parent or any Subsidiary other than Collateral, and a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to or otherwise subject to the provisions of a junior lien intercreditor agreement or collateral trust agreement having customary terms and reasonably satisfactory to the Administrative Agent reflecting the second (or more junior) lien status of the Liens securing such Indebtedness or (C) unsecured; (iv) none of the obligors or guarantors with respect to such Indebtedness shall be a Person that is not a Loan Party; (v) the terms and conditions (excluding any subordination, pricing, fees, rate floors, discounts, premiums and optional prepayment or redemption terms) of such Indebtedness, taken as a whole, shall not be materially less favorable to the Loan Parties than those applicable to the refinanced Term Loans, except for covenants or other provisions applicable only to periods after the Initial Maturity Date; (vi) the principal amount (or accreted value, if applicable) of such Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the refinanced Term Loans except by an amount equal to any interest capitalized, any premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing; and (vii) substantially concurrently with the incurrence or issuance of such debt securities or loans, 100% of the net proceeds thereof shall be applied to repay the refinanced Term Loans including accrued interest, fees, costs and expenses relating thereto. Permitted External Refinancing Debt shall include any Registered Equivalent Notes issued in exchange therefor.
Permitted Incremental Equivalent Debt”: any Indebtedness incurred by one or more of the Borrowers in the form of one or more series of secured or unsecured debt securities or loans; provided that (i) the final maturity date of any such Indebtedness not be earlier than the date that is 91 days following the Initial Maturity Date, (ii) the terms of such Indebtedness shall not provide for any scheduled repayment, mandatory redemption, sinking fund obligations or other payment (other than periodic interest payments) prior to the date that is 91 days following the Initial Maturity Date, other than customary offers to purchase upon a change of control, asset sale or casualty or condemnation event and customary acceleration rights upon an event of default, (iii) such Indebtedness shall be either (A) solely in the case of debt securities, secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations and shall not be secured by any property or assets of the Parent Borrower or any Restricted Subsidiary other than Collateral, and a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to a first lien intercreditor or collateral trust agreement having customary terms and reasonably satisfactory to the Administrative Agent reflecting the pari passu status of the Liens securing such Indebtedness, (B) secured by the Collateral on a junior basis (including with respect to the control of remedies) with the Obligations and shall not be secured by any property or assets of the Parent Borrower or any Restricted Subsidiary other than Collateral, and a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to or otherwise subject to the provisions of a junior lien intercreditor agreement or collateral trust agreement having customary terms and reasonably satisfactory to the Administrative Agent reflecting the second (or more junior) lien status of the Liens securing such Indebtedness or (C) unsecured, (iv) none of the obligors or guarantors with respect to such Indebtedness shall be a Person that is not a Loan Party and (v) the terms and conditions (excluding any subordination, pricing, fees, rate floors, discounts, premiums and optional prepayment or redemption terms) of such Indebtedness, taken as a whole, shall not be materially less favorable to the Loan Parties than those applicable to the Term Loans, except for covenants or other provisions applicable only to periods after the Initial Maturity Date.
Permitted Liens”: as defined in Section 7.3.
Permitted Refinancing Indebtedness”: any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (including any



Defeased Debt) (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest and any premium (including tender, call or make-whole premiums) thereon, any committed or undrawn amounts and underwriting discounts, fees, commissions and expenses, associated with such Permitted Refinancing Indebtedness), (b) (i) such Permitted Refinancing Indebtedness has a final maturity date equal to or later than the earlier of (x) the final maturity date of the Indebtedness being Refinanced and (y) 91 days after the Initial Maturity Date (it being understood that, in each case, any provision requiring an offer to purchase such Indebtedness as a result of a change of control or asset sale shall not violate the foregoing restriction) and (ii) such Permitted Refinancing Indebtedness has a weighted average life to maturity equal to or greater than the weighted average life to maturity of the Indebtedness being Refinanced, (c) if the Indebtedness being Refinanced is by its terms subordinated in right of payment to the Obligations under this Agreement, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to such Obligations on terms not materially less favorable to the Loan Parties as those contained in the documentation governing the Indebtedness being Refinanced, taken as a whole, (d) no Permitted Refinancing Indebtedness as of the date of incurrence of such Permitted Refinancing Indebtedness shall have obligors or contingent obligors that were not as of such date obligors or contingent obligors (or that would not have been required to become obligors or contingent obligors) in respect of the Indebtedness being Refinanced (it being understood that the terms of any such Permitted Refinancing Indebtedness shall not, as of the date of the incurrence thereof, require any new obligors or contingent obligations that were not as of such date obligors or required to become obligors or contingent obligors under the Indebtedness being Refinanced) and (e) if the Indebtedness being Refinanced is (or would have been required to be) secured by the Collateral, such Permitted Refinancing Indebtedness may be secured by such Collateral on terms not materially more favorable, taken as a whole, to the Secured Parties than the Indebtedness being Refinanced; provided that with respect to any Indebtedness secured by a Lien on the Collateral, any Liens securing such Permitted Refinancing Indebtedness shall, to the extent the Indebtedness being Refinanced was subject to an intercreditor agreement with respect to the Obligations hereunder, be subject to an intercreditor agreement that is not materially less favorable, taken as a whole, to the Loan Parties than the intercreditor agreement outstanding in respect of the Indebtedness being Refinanced.
Permitted Restructuring”: any activities related to tax planning and tax reorganization entered into after the date hereof so long as such Permitted Restructuring does not materially impair the guarantee contained in Section 2 of the Guarantee and Collateral Agreement or the security interests of the Lenders on the Collateral, in each case, taken as a whole, and is otherwise not materially adverse to the Lenders (as determined by the Parent Borrower in good faith) and after giving effect to such Permitted Restructuring, the Parent Borrower and its Restricted Subsidiaries shall otherwise be in compliance with Section 6.10.
Person”: 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.
Plan”: any employee benefit plan as defined in Section 3(3) of ERISA, including any employee welfare benefit plan (as defined in Section 3(1) of ERISA), any employee pension benefit plan (as defined in Section 3(2) of ERISA but excluding any Multiemployer Plan), and any plan which is both an employee welfare benefit plan and an employee pension benefit plan, and in respect of which any



Group Member or any ERISA Affiliate is (or, if such Plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in section 3(5) of ERISA.
Pledged Stock”: as defined in the Guarantee and Collateral Agreement. For the avoidance of doubt, the term “Pledged Stock” shall not include any Excluded Collateral.
Polish Zloty” means the lawful currency of Poland.
Pounds Sterling”: the lawful currency of the United Kingdom.
Prime Rate”: the rate of interest per annum last quoted by The Wall Street Journal in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
pro forma basis”: in connection with any transaction for which a determination on a pro forma basis for any period of four consecutive fiscal quarters (each, a “Reference Period”) is required to be made hereunder, “pro forma basis” shall mean that such determination shall be made (i) after giving effect to any Material Acquisition and any Material Disposition during such Reference Period and to include any Indebtedness incurred, assumed or repaid in connection therewith (assuming, to the extent such Indebtedness bears interest at a floating rate, the rate in effect at the time of calculation for the entire period of calculation) and (ii) assuming that such Material Acquisition or Material Disposition occurred and such Indebtedness was incurred, assumed or repaid at the beginning of such Reference Period; provided that any pro forma calculation made by the Parent Borrower either (i) based on Regulation S-X or (ii) as calculated in good faith and set forth in an officer’s certificate of the Parent Borrower (and in the case of this clause (ii), based on audited financials of the target company or other financials reasonably satisfactory to the Administrative Agent) shall be acceptable. As used in this definition, “Material Acquisition” means any acquisition of property or series of related acquisitions of property that (a) constitutes assets comprising all or substantially all of an operating unit of a business or constitutes all or substantially all of the common stock of a Person and (b) involves the payment of consideration by the Parent Borrower and its Restricted Subsidiaries in excess of $5,000,000; and “Material Disposition” means any Disposition of property or series of related Dispositions of property that (a) comprises all or substantially all of an operating unit of a business or constitutes all or substantially all of the common stock of a Person and (b) that yields gross proceeds to the Parent Borrower or any of its Restricted Subsidiaries in excess of $5,000,000.
Process Agent”: as defined in Section 10.12(b).
Prohibited Transaction”: as defined in Section 406 of ERISA and Section 4975(c) of the Code.
Projections”: as defined in Section 6.2(c).
Properties”: as defined in Section 4.17(a).
Proposed Change”: as defined in Section 2.23.



PTE”: means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
Purchase”: any transaction, or any series of related transactions, consummated on or after the date of this Agreement, by which the Parent Borrower or any of its Restricted Subsidiaries (i) acquires all or substantially all of the assets of any firm, corporation or limited liability company, or business unit or division thereof, whether through purchase of assets, merger or otherwise or (ii) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes for the members of the board of directors) of the Capital Stock of a Person.
Purchase Consideration”: with respect to any Purchase, the aggregate cash and non-cash consideration for such Purchase. The “Purchase Consideration” for any Purchase expressly includes Indebtedness assumed in such Purchase and the good faith estimate by the Parent Borrower of the maximum amount of any deferred purchase price obligations (including earn-out payments) incurred in connection with such Purchase. The “Purchase Consideration” for any Purchase expressly excludes (a) Capital Stock of the Parent Borrower issued to the seller as consideration for such Purchase and (b) the Net Cash Proceeds of the sale or issuance of Capital Stock by the Parent Borrower to the extent such Purchase is made within ninety days of the receipt of such Net Cash Proceeds by the Parent Borrower.
QFC”: any “qualified financial contract” as defined in, and interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
QFC Credit Support”: as defined in Section 10.22.
QMA Notice”: as defined in the definition of “Qualifying Material Acquisition”.
Qualified Receivables Transaction”: (x) any transaction or series of transactions that may be entered into by the Parent Borrower or any Restricted Subsidiary pursuant to which the Parent Borrower or any Restricted Subsidiary may sell, convey or otherwise transfer to a newly-formed Restricted Subsidiary or other special-purpose entity, or any other Person, any accounts or notes receivable and rights related thereto and (y) any Qualified Receivables Transaction described in clause (x) above that is secured by the accounts or notes receivable and rights related thereto underlying another Qualified Receivables Transaction on a junior Lien basis; provided that, in each case, all of the terms and conditions of such transaction or series of transactions, including without limitation the amount and type of any recourse to the Parent Borrower or any Restricted Subsidiary with respect to the assets transferred, are reasonably acceptable to the Administrative Agent.
Qualifying Material Acquisition”: any Permitted Acquisition or other Purchase permitted by this Agreement, if (i) the aggregate Purchase Consideration of such Permitted Acquisition or Purchase is at least $150,000,000 and (ii) the Parent Borrower has designated such Permitted Acquisition or Purchase as a “Qualifying Material Acquisition” by a written notice (a “QMA Notice”) provided to the Administrative Agent within 10 Business Days after consummating such Permitted Acquisition or Purchase.
Quotation Day”: in relation to any period for which an interest rate is to be determined:
(i) if the currency is Pounds Sterling or Canadian Dollars, the first day of that period;
(ii) if the currency is the Euro, two TARGET Days before the first day of that period; or



(iii) for any other currency, two Business Days before the first day of that period,
unless market practice differs in the Relevant Interbank Market for a currency, in which case the Quotation Day for that currency will be determined by the Administrative Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).
Ratio Incremental Amount”: as defined in the definition of “Incremental Cap”.
Real Estate Collateral Requirement”: at any time, subject to (x) the applicable limitations set forth in this Agreement and/or any other Loan Document and (y) the time periods (and extensions thereof) set forth in Section 6.10, the requirement that the Administrative Agent shall have received (i) a Mortgage with respect to each Mortgaged Property, delivered pursuant to Section 6.10, duly executed by the record owner of such Mortgaged Property granting a Lien on such Mortgaged Property subject to no other Liens other than Liens permitted by Section 7.3, (ii) a policy or policies of title insurance reasonably acceptable to the Administrative Agent, naming the Administrative Agent as the insured for the benefit of the Lenders, issued by a nationally recognized title insurance company reasonably acceptable to the Administrative Agent insuring the Lien of each such Mortgage in the amount of the fair market value of the land and improvements thereon as reasonably determined by the Parent Borrower (it being agreed that in no event shall an appraisal or other third-party valuation be required unless required by an applicable Requirement of Law) as a valid and enforceable Lien on the Mortgaged Property described therein subject to no Liens other than Liens permitted by Section 7.3, together with such endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request (it being agreed that the Administrative Agent shall accept zoning reports from a nationally recognized zoning company in lieu of zoning endorsements to such title insurance policies), and (iii) such surveys, appraisals, legal opinions and other documents as the Administrative Agent may reasonably request with respect to any such Mortgage or Mortgaged Property; provided however, that no new survey will be required of any Mortgaged Property if there is a survey available for such Mortgaged Property that is acceptable to the issuer of the title insurance policy to issue customary survey-related endorsements thereto; provided, further, in any jurisdiction in which a mortgage tax or similar charge is assessed on the making or filing of a mortgage or deed of trust, the amount of the Obligation secured by such mortgage or deed of trust shall be limited to the fair market value of the land and improvements subject thereto as reasonably determined by the Parent Borrower (it being agreed that in no event shall an appraisal or other third-party valuation be required unless required by an applicable Requirement of Law).
Receivables Entity”: a Wholly Owned Subsidiary of the Parent Borrower (or another Person formed for the purposes of engaging in a Qualified Receivables Transaction with the Parent Borrower in which the Parent Borrower or any Subsidiary of the Parent Borrower makes an Investment and to which the Parent Borrower or any Subsidiary of the Parent Borrower transfers accounts receivable and related assets) which engages in no activities other than in connection with the financing of accounts receivable of the Parent Borrower and its Subsidiaries, all proceeds thereof and all rights (contractual or other), collateral and other assets relating thereto, and any business or activities incidental or related to that business, and (with respect to any Receivables Entity formed after the Amendment and Restatement Effective Date) which is designated by the board of directors of the Parent Borrower (as provided below) as a Receivables Entity and
(a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which



(1) is guaranteed by the Parent Borrower or any Restricted Subsidiary of the Parent Borrower other than another Receivables Entity (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings),
(2) is recourse to or obligates the Parent Borrower or any Restricted Subsidiary of the Parent Borrower (other than another Receivables Entity) in any way other than pursuant to Standard Securitization Undertakings, or
(3) subjects any property or asset of the Parent Borrower or any Restricted Subsidiary of the Parent Borrower (other than another Receivables Entity), directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings;
(b) with which neither the Parent Borrower nor any Restricted Subsidiary of the Parent Borrower (other than another Receivables Entity) has any material contract, agreement, arrangement or understanding other than on terms which the Parent Borrower reasonably believes to be no less favorable to the Parent Borrower or the Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Parent Borrower, and
(c) to which neither the Parent Borrower nor any Restricted Subsidiary of the Parent Borrower (other than another Receivables Entity) has any obligation to maintain or preserve the entity’s financial condition or cause the entity to achieve certain levels of operating results other than pursuant to Standard Securitization Undertakings.
Any designation of this kind by the board of directors of the Parent Borrower shall be evidenced to the Administrative Agent by filing a certificate of a Responsible Officer of the Parent Borrower certifying that the designation complied with the foregoing conditions.
Receivables Transaction Attributed Indebtedness”: the amount of obligations outstanding under the legal documents entered into as part of any Qualified Receivables Transaction on any date of determination that would be characterized as principal if such Qualified Receivables Transaction were structured as a secured lending transaction rather than as a purchase.
Recovery Event”: any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of any Group Member.
Reference Period”: as defined in the definition of “pro forma basis”.
Refinance”: as defined in the definition of “Permitted Refinancing Indebtedness”.
Refinanced Term Loans”: as defined in Section 2.29(a).
Refinancing Term Loans”: one or more new Classes of Term Loans that result from an Additional Credit Extension Amendment in accordance with Section 2.28.
Refunded Swingline Loans”: as defined in Section 2.7(b).