EX-10.1 2 tpx-2018630xexhibit101.htm EXHIBIT 10.1
Exhibit 10.1
AMENDMEN T NO. 1 T O CRED I T AND SECUR I T Y AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AND SECURITY AGREEMENT dated as of September 25, 2017 (this "Amendm en t"), is entered into by and among:
(a)Tempur Sealy Receivables, LLC, a De l aware limited liability company (the "Borrower”),
(b)Tempur Sea l y International, Inc., a De l aware corporation, as initial Master Servicer (in such capacity, together w ith i t s succ e ssors in such capacity, the "Master Servicer”), and
(c)Wells Fargo Bank, National Assoc i at i on, a nationa l banking association ("W e lls Fargo" or the "Lender").
PRELIMINARY STATEMENTS
T he Borrower, the Master Serv i ce r a nd the Lender are parties to that certain Credit and Sec u ri t y Agreement, dated as of April 12, 2017 (as in effect on the date hereof and as amended hereby, the "CSA”.
On the terms and s ub ject to the conditions set forth here i n, the parties wish to ame nd the CSA a s hereinafter prov id ed.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:
1.Defin i tions. Capitalized terms used and not otherwise defined herein a r e used with the mean i ngs attributed thereto in the CSA.
2.Amendment. The definition of "SMMC Interim Borrowing Bas e T e rmination Date" set forth in Ex hi bit I t o the CSA is hereby a m ended and r estated i n i ts e n t ir ety to r ead as follows:
"SMMC Interim Borrowing Base Termination Date" means, t h e earlier to occur o f (i) February 12, 2018 or (ii) the SMMC Reporting Date.
3.Representations and Warranties. I n order to ind uce t h e Lender to enter i nto this Amendment, each of the Borrower and the Master Servicer hereby agrees that th i s Amendment constitutes a Transaction Document a n d hereby re p rese n ts and wa r rants to the Lender that each of its representations a n d warranties set forth in Article Ill of the CSA is true and correct in a ll respects on and as of the date hereof as thoug h made on and as of the date h ereof (except to the extent such representations and warranties expressly relate to an ear l ier date, in which case such represe n tations and warranties were true and correct i n all r espects as of suc h earlier date), other than, in each case, any breac h of any such rep r esentation or war r anty that co uld not reasonably be expected to have a n Originator Material Adverse Effec t or a Material Adve r se Effect
4.Conditions Precedent. This Amendment s h all become effective as of the date hereof upon r ece i pt by the Lender of counterparts h ere to, du ly e xe c uted by each of the parties he r eto.

5. | Miscellaneous.

(a) THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK (WITHOUT GIV I NG EFFECT TO THE CON FLI CT OF LAWS PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LA W WHICH SHALL APPLY HERETO).
(b) EACH LOAN PARTY HER EBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPT I ON, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE LENDER, IN ANY WAY RELAT I NG TO THIS AMENDMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UN I TED STATES D I STRIC T COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY A PPEL LATE COURT FROM ANY THEREOF AND EACH OF THE LOAN PARTIES IRREVOCABLY AND UNCONDITIONALLY SUBM I TS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND AGREES THAT ALL CLA I M S IN RESPECT OF ANY SUCH ACT I ON, LITIGATION OR PROCEED I NG MAY BE HEARD AND DETERM I N ED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE LOAN PARTIES AGREES THAT A FINALJUDGMENT IN ANY SUCH ACTION, LITIGAT I ON OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICT I ONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AMENDMENT OR I N ANY OTHER TRANSACT I ON DOCUMENT SHALL AFFECT ANY RIGHT THAT THE LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEED I NG RELAT I NG TO THIS AMENDMENT OR ANY OTHER TRANSACTION DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES I N THE COURTS OF ANY JURISDICTION. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE LAYING OF VENUE OF ANY SUCH SU I T, ACTION OR PROCEEDING ARISNG OUT OF OR RELATING OT THIS AMENDMENT OR ANY OTHER TRANSACTION DOCUMENT I N ANY SUCH COURT. EACH OF THE LOAN PAR I TES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING I N ANY SUCH COURT.
(c) EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AMENDMENT, ANY DOC U M ENT EXECUTED BY ANY LOAN PARTY PURSUANT TO THE CSA AS AMENDED IW THIS AMENDMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER. This Amendment and each other Transaction Document conta i n the final and complete

integration of a ll prior expressions by the parties hereto with respec t to the sub je ct matter hereof and thereof and shall constitute the entire agreement among the parties hereto with r espect to the subject matter hereof and t he r eof superseding all prior oral or written understandings.
(d) This Amendment shall be b i nding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns (including any trustee in bankruptcy).
(e) This Amendment may be executed i n any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed sha ll be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. To the fullest extent permi t ted by applicable law, de li very of an executed counterpart of a signature page of this Amendment by telefacsimile or electronic ima ge scan transmission (such as a "pdf' fi l e) wi ll be effective to th e same extent as de liv ery of a ma nu a lly executed origina l counterpart of this Amendment. Any provisions of th i s Amendment which a re prohibited or un enforc eab le in any jur i sdict i on shall, as to such jurisdiction, be in effective to t he ex t ent of such pr ohibition or unenforceabi li ty without inva li dati n g the rema i ning provisions hereof, and a n y such prohibition or unenforceabi l i ty in any jurisdiction s hal l not i n val id ate or rende r unenforceable such provision in any othe r jurisdiction.
[Signature Pages Follow]

IN WITNESS W H E R EOF, the part i es hereto have caused th is Amendment to be executed and de liv ered by the ir duly au thorized officers as of the date hereof.
TEMPUR SEALY RECEIVABLES, LLC, AS THE BORROWER
By: Tempur-Pedic North America, LLC, its Manager

By: | /s/ James M. Schockett

Name: James M. Schockett
Title: Vice President, Treasurer and Assistant Secretary
TEMPUR SEALY INTERNATIONAL, INC., AS THE MASTER SERVICER

By: | /s/ James M. Schockett

Name: James M. Schockett
Title: Vice President, Treasurer and Assistant Secretary

WELLS FARGO BANK, NATIONAL ASSOCIATION, AS THE L E NDER
By: /s/ Patrick E. McConnell
Name: Patrick E. McConnell
Title: Director
s