Assumption Agreement among Simmons Holdings, Inc., Simmons Company, Subsidiaries, and Deutsche Bank AG as Administrative Agent (December 19, 2003)
Summary
This agreement, dated December 19, 2003, is between Simmons Holdings, Inc., Simmons Company, certain subsidiaries, and Deutsche Bank AG (as Administrative Agent for lenders). It formalizes the assumption by Post-Merger Simmons of all rights and obligations under existing credit and term loan agreements following a corporate acquisition and merger. The parties agree that Post-Merger Simmons and the listed guarantors will be bound by all terms of the original agreements, including guaranteeing payment of all obligations. The agreement ensures continuity of obligations and lender protections after the corporate restructuring.
EX-10.35 29 g87842exv10w35.txt ASSUMPTION AGREEMENT EXHIBIT 10.35 ASSUMPTION AGREEMENT, dated as of December 19, 2003, made by, Simmons Holdings, Inc , a Delaware corporation (' SIMMONS HOLDCO ), Simmons Company, a Delaware corporation (' PRE-MERGER SIMMONS") and certain subsidiaries of Simmons listed on the signature pages hereto (the "GUARANTORS") in each case in favor of DEUTSCHE BANK AG, NEW YORK BRANCH ("DBNY") as Administrative Agent (in such capacity, the 'ADMINISTRATIVE AGENT") for the banks and other financial institutions or entities (the ' LENDERS") parties to the Credit Agreement and Term Loan Agreement referred to below All capitalized terms not defined herein shall have the meanings given to them in such Credit Agreement and such Term Loan Agreement, as applicable WITNESSETH WHEREAS, THL Bedding Company a Delaware corporation (the 'ACQUISITION COMPANY ) THL-SC Bedding Company, a Delaware corporation ("HOLDINGS") the Lenders, the Administrative Agent, the other Agents, the Swing Line Lender and the Issuing Bank named therein have entered into the Credit Agreement dated as of December 19, 2003 (as amended, supplemented or otherwise modified from time to time, the CREDIT AGREEMENT"), WHEREAS, in connection with the Credit Agreement, Holdings the Acquisition Company, Simmons HoldCo, Pre-Merger Simmons and certain of the Guarantors have entered into the Pledge and Security Agreement (as amended, supplemented or otherwise modified from time to time, the SECURITY AGREEMENT"), in favor of DBNY, as Collateral Agent for the benefit of the Lenders, WHEREAS, Acquisition Company, Holdings, the Lenders, the Administrative Agent, and the other Agents named therein have entered into the Senior Unsecured Term Loan and Guaranty Agreement dated as of December 19, 2003 (as amended, supplemented or otherwise modified from time to time the "TERM LOAN AGREEMENT"), WHEREAS, pursuant to the Stock Purchase Agreement dated as of November 17, 2003 between Holdings, the Acquisition Company Simmons HoldCo and the other sellers party thereto (the "SELLERS"), the Acquisition Company has agreed to purchase from Sellers certain of the common stock of Simmons HoldCo (the ACQUISITION ), WHEREAS immediately following with the consummation of the Acquisition, (i) Acquisition Company will merge with and into Simmons HoldCo with Simmons HoldCo being the surviving corporation (the "FIRST Merger"), and (ii) immediately after the First Merger, Pre-Merger Simmons, a wholly-owned subsidiary of Simmons HoldCo, will merge with and into Simmons HoldCo (the "SECOND MERGER", and together with the First Merger, the "MERGERS'), with Simmons HoldCo being the surviving corporation, changing its name to "SIMMONS COMPANY" and a wholly-owned subsidiary of Holdings (such surviving is referred to herein as "POST-MERGER SIMMONS ), and WHEREAS, this Assumption Agreement is executed and delivered pursuant to the Credit Agreement NOW, THEREFORE, IT IS AGREED (i) Credit Agreement By executing and delivering this Assumption Agreement and after giving effect to the Acquisition and the Mergers Post-Merger Simmons hereby assumes all rights, title, interests, obligations and liabilities of all and whatever nature of the Acquisition Company under the Credit Agreement, the Notes, the Security Agreement and each of the other Credit Documents (in furtherance of and in addition to, and not in lieu of any assumption or deemed assumption by operation of law) from and after the date hereof with the same force and effect as if originally the Company" as such term is defined under the Credit Agreement and a ' Grantor" under the Security Agreement and, to the extent the Acquisition Company was a party thereto, each other Credit Document Without limiting the generality of the foregoing, Post-Merger Simmons hereby expressly agrees to observe and perform and be bound by all of the terms covenants representations, warranties and agreements contained in the Credit Agreement and each other Credit Document delivered thereunder which are binding upon, and to be observed or performed by, the Acquisition Company Post-Merger Simmons hereby ratifies and confirms the validity of, and all of its obligations and liabilities (including the Obligations) under, the Credit Agreement and such other Credit Documents Post-Merger Simmons hereby 839442 New York Server 7A EXECUTION 1 represents and warrants that after giving effect to this Assumption Agreement, each of the representations and warranties contained in Section 4 of the Credit Agreement is true and correct in all material respects on and as of the date hereof (ii) Guaranty of Credit Agreement By executing and delivering this Assumption Agreement and after giving effect to the Acquisition each of Simmons HoldCo Pre-Merger Simmons and the Guarantors agree (a) that by the execution and delivery hereof each such Person hereby becomes a Guarantor under the Credit Agreement and agrees to be bound by all of the terms thereof (b) agrees to irrevocably and unconditionally guaranty the due and punctual payment in full of all Obligations when the same shall become due whether at stated maturity, by required prepayment declaration, acceleration demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code) and in accordance with Section 7 of the Credit Agreement, (c) confirms its obligations as a "Grantor" under the Security Agreement and each other Credit Document, and (d) represents and warrants that each of the representations and warranties set forth in Section 4 of the Credit Agreement is true and correct in all material respects both before and after giving effect to this Assumption Agreement (iii) Term Loan Agreement By executing and delivering this Assumption Agreement, and after giving effect to the Acquisition and the Mergers, Post-Merger Simmons hereby assumes all rights, title, interests obligations and liabilities of all and whatever nature of the Acquisition Company under the Term Loan Agreement, the Notes and each of the other Credit Documents (in furtherance of and in addition to, and not in lieu of, any assumption or deemed assumption by operation of law) from and after the date hereof with the same force and effect as if originally the "Company' as such term is defined under the Term Loan Agreement and, to the extent the Acquisition Company was a party thereto, each other Credit Document Without limiting the generality of the foregoing Post-Merger Simmons hereby expressly agrees to observe and perform and be bound by all of the terms, covenants, representations, warranties and agreements contained in the Term Loan Agreement and each other Credit Document delivered thereunder which are binding upon, and to be observed or performed by, the Acquisition Company Post-Merger Simmons hereby ratifies and confirms the validity of, and all of its obligations and liabilities (including the Obligations) under, the Term Loan Agreement and such other Credit Documents Post-Merger Simmons hereby represents and warrants that after giving effect to this Assumption Agreement each of the representations and warranties contained in Section 4 of the Term Loan Agreement is true and correct in all material respects on and as of the date hereof (iv) Guaranty of Term Loan Agreement By executing and delivering this Assumption Agreement and after giving effect to the Acquisition, each of Simmons HoldCo Pre-Merger Simmons and the Guarantors agree (a) that by the execution and delivery hereof each such Person hereby becomes a Guarantor under the Term Loan Agreement and agrees to be bound by all of the terms thereof, (b) agrees to irrevocably and unconditionally guaranty the due and punctual payment in full of all Obligations when the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code) and in accordance with Section 7 of the Term Loan Agreement, and (c) represents and warrants that each of the representations and warranties set forth in Section 4 of the Term Loan Agreement is true and correct in all material respects both before and after giving effect to this Assumption Agreement (v) Effect on the Credit Agreement, the Term Loan Agreement and Credit Documents On and after the effectiveness of this Assumption Agreement and after giving effect to the Mergers, each reference in each of the Credit Agreement, the Term Loan Agreement and each other Credit Document (as such term is defined in each of the Credit Agreement and the Term Loan Agreement) to the Company," or words to that effect shall mean and be a reference to 839442 New York Server 7A EXECUTION 2 Post-Merger Simmons and Post-Merger Simmons shall be the Company" for all purposes of the Credit Agreement, the Term Loan Agreement and the other Credit Documents (as such term is defined in each of the Credit Agreement and the Term Loan Agreement) (vi) Governing Law This Assumption Agreement shall be governed by, and construed in accordance with, the laws of the State of New York (vii) Credit Document This Agreement shall constitute a Credit Document [The remainder of this page is intentionally left blank] 839442 New York Server 7A EXECUTION 3 IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed and delivered as of the date first above written SIMMONS HOLDINGS, INC By /s/ William S. Creekmuir ------------------------------ Name William S. Creekmuir Title SIMMONS COMPANY By /s/ William S. Creekmuir ------------------------------ Name William S. Creekmuir Title THE SIMMONS MANUFACTURING CO , LLC By /s/ William S. Creekmuir ------------------------------ Name William S. Creekmuir Title GALLERY CORP By /s/ William S. Creekmuir ------------------------------ Name William S. Creekmuir Title WORLD OF SLEEP OUTLETS LLC By /s/ William S. Creekmuir ------------------------------ Name William S. Creekmuir Title 839442 New York Server 7A EXECUTION 4 SIMMONS CONTRACT SALES, LLC By /s/ William S. Creekmuir ------------------------------------- Name William S. Creekmuir Title WINDSOR BEDDING CO LLC By /s/ William S. Creekmuir ------------------------------------- Name William S. Creekmuir Title SC HOLDINGS, INC By /s/ William S. Creekmuir ------------------------------------- Name William S. Creekmuir Title SLEEP COUNTRY USA, INC By /s/ William S. Creekmuir ------------------------------------- Name William S. Creekmuir Title DREAMWELL, LTD By /s/ William S. Creekmuir -------------------------------------- Name William S. Creekmuir Title SIMMONS CAPITAL MANAGEMENT, LLC By /s/ William S. Creekmuir ------------------------------------- Name William S. Creekmuir Title 839442 New York Server 7A EXECUTION 5 Acknowledged THL SC BEDDING COMPANY By /s/ William S. Creekmuir ------------------------------------- Name William S. Creekmuir Title 839442 New York Server 7A EXECUTION 6 DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative Agent By /s/ Mary Kay Coyle - ---------------------------------------- Name Mary Kay Coyle Managing Director 839442 New York Server 7A EXECUTION 7
