Exhibit 10.33


Kohlberg Kravis Roberts & Co.
L.P.

9 West 57th Street

New York, New York 10019


April 6, 2004


Sealy Mattress Company


One Office Parkway


Trinity, North Carolina 27370


 


Ladies and Gentlemen:


 


This letter serves
to confirm the retention by Sealy Mattress Company (the “Company”) of Kohlberg
Kravis Roberts & Co. L.P. (“KKR”) to provide management, consulting and
financial services to the Company and its divisions, subsidiaries and
affiliates (collectively, “Sealy”), as follows:


1.     The
Company has retained us, and we hereby agree to accept such retention, to
provide to Sealy, when and if called upon, certain management, consulting and
financial services of the type customarily performed by us.  The Company agrees to pay us an annual fee in
an amount equal to two million dollars ($2,000,000.00), such fee to be
increased at a rate of 5% annually, effective as of March 31st of
each such year, payable in quarterly installments in arrears at the end of each
calendar quarter.


2.     In
consideration for our structuring services rendered in connection with the
merger of Sealy Acquisition Corp. with and into the Company (the
“Transaction”), which such services included, but were not limited to,
financial advisory services and capital structure review, the Company agrees to
also pay a one-time transaction fee to us in a total amount equal to twenty
five million dollars ($25,000,000.00), payable immediately upon the completion
of the Transaction.


3.     We may
also invoice the Company for additional fees in connection with acquisition or
divestiture transactions or in the event that we, or any of our affiliates,
perform services for Sealy above and beyond those called for by this agreement.


4.     In
addition to any fees that may be payable to us under this agreement, the Company
also agrees to reimburse us and our affiliates, from time to time upon request,
for all reasonable out-of-pocket expenses incurred, including unreimbursed
expenses incurred to the date hereof, in connection with this retention,
including travel expenses and expenses of our counsel.


5.     The
Company agrees to indemnify and hold us, our affiliates (including, without
limitation, affiliated investment entities) and their and our respective
partners,


 


 





















 


executives, officers, directors, employees, agents and controlling
persons (each such person, including us, being an “Indemnified Party”) harmless
from and against (i) any and all losses, claims, damages and liabilities
(including, without limitation, losses, claims, damages and liabilities arising
from or in connection with legal actions brought by or on behalf of the holders
or future holders of the outstanding securities of Sealy or creditors or future
creditors of Sealy), joint, several or otherwise, to which such Indemnified
Party may become subject under any applicable federal or state law, or
otherwise, related to or arising out of any activity contemplated by this
agreement or our retention pursuant to, and our or our affiliates’ performance
of the services contemplated by, this agreement and (ii) any and all losses,
claims, damages and liabilities, joint, several or otherwise, related to or
arising out of any action or omission or alleged action or omission related to
the Company or any of its direct or indirect subsidiaries or the securities or
obligations of any such entities.  The
Company will further, subject to the proviso to the immediately preceding
sentence, reimburse any Indemnified Party for all expenses (including counsel
fees and disbursements) upon request as they are incurred in connection with
the investigation of, preparation for or defense of any pending or threatened
claim or any action or proceeding arising from any of the foregoing, whether or
not such Indemnified Party is a party and whether or not such claim, action or
proceeding is initiated or brought by the Company; provided, however,
that the Company will not be liable under the foregoing indemnification
provision (and amounts previously paid that are determined not required to be
paid by the Company pursuant to the terms of this paragraph shall be repaid
promptly) to the extent that any loss, claim, damage, liability or expense is
found in a final judgment by a court to have resulted from our willful
misconduct or gross negligence.  The Company
agrees that no Indemnified Party shall have any liability (whether direct or
indirect, in contract or tort or otherwise) to Sealy related to or arising out
of our retention pursuant to, or our affiliates’ performance of the services
contemplated by, this agreement except to the extent that any loss, claim,
damage, liability or expense is found in a final, non-appealable judgment by a
court to have resulted from our willful misconduct, bad faith or gross
negligence.


The Company also
agrees that, without our prior written consent, it will not settle, compromise
or consent to the entry of any judgment in any pending or threatened claim,
action or proceeding to which an Indemnified Party is an actual or potential
party and in respect of which indemnification could be sought under the
indemnification provision in the immediately preceding paragraph, unless such
settlement, compromise or consent includes an unconditional release of each
Indemnified Party from all liability arising out of such claim, action or
proceeding.


Promptly after
receipt by an Indemnified Party of notice of any suit, action, proceeding or
investigation with respect to which an Indemnified Party may be entitled to
indemnification hereunder, such Indemnified Party will notify the Company in
writing of the assertion of such claim or the commencement of such suit,
action, proceeding or investigation, but the failure to so notify the Company
shall not relieve the Company from any liability which it may have hereunder,
except to the extent that such failure has materially prejudiced the
Company.  If the Company so elects within
a reasonable time after receipt of such notice, the Company may participate at
its own expense in the defense of such suit, action, proceeding or
investigation.  Each Indemnified Party
may employ separate counsel to represent it or defend it in any such suit,
action, proceeding or investigation in which it may become involved or is named
as a defendant and, in such event, the reasonable fees and disbursements of
such counsel


 


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shall
be borne by the Company; provided, however, that the Company will
not be required in connection with any such suit, action, proceeding or
investigation, or separate but substantially similar actions arising out of the
same general allegations or circumstances, to pay the fees and disbursements of
more than one separate counsel (other than local counsel) for all Indemnified
Parties in any single action or proceeding. 
Whether or not the Company participates in the defense of any claim, the
Company and we shall cooperate in the defense thereof and shall furnish such
records, information and testimony, and attend such conferences, discovery
proceedings, hearings, trials and appeals, as may be reasonably requested in
connection therewith.


If the
indemnification provided for in clause (i) of the first sentence of this
Section 5 is finally judicially determined by a court of competent jurisdiction
to be unavailable to an Indemnified Party, or insufficient to hold any
Indemnified Party harmless, in respect of any losses, claims, damages or
liabilities (other than any losses, claims, damages or liabilities found in a
final judgment by a court to have resulted from our willful misconduct or gross
negligence), then the Company, on the one hand, in lieu of indemnifying such
Indemnified Party, and we, on the other hand, will contribute to the amount
paid or payable by such Indemnified Party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received, or sought to be received, by Sealy on the one hand and us,
solely in our capacity as an advisor under this agreement, on the other hand in
connection with the transactions to which such indemnification, contribution or
reimbursement is sought, or (ii) if (but only if) the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of Sealy on the one hand and us on the other, as
well as any other relevant equitable considerations; provided, however,
that in no event shall our aggregate contribution hereunder exceed the amount
of fees actually received by us in respect of the transaction at issue pursuant
to this agreement.  The amount paid or
payable by a party as a result of the losses, claims, damages and liabilities
referred to above will be deemed to include any legal or other fees or expenses
reasonably incurred in defending any action or claim.  The Company and we agree that it would not be
just and equitable if contribution pursuant to this paragraph were determined
by pro rata allocation or by any other method which does not take into account
the equitable considerations referred to in this paragraph.  The indemnity, contribution and expense
reimbursement obligations that the Company has under this letter shall be in
addition to any the Company or Sealy may have, and notwithstanding any other
provision of this letter, shall survive the termination of this agreement.


6.     Any advice
or opinions provided by us may not be disclosed or referred to publicly or to
any third party (other than Sealy’s legal, tax, financial or other advisors),
except in accordance with our prior written consent.


7.     We shall
act as an independent contractor, with duties solely to Sealy.  The provisions hereof shall inure to the
benefit of and shall be binding upon the parties hereto and their respective
successors and assigns.  Nothing in this
agreement, expressed or implied, is intended to confer on any person other than
the parties hereto or their respective successors and assigns, and, to the
extent expressly set forth herein, the Indemnified Parties, any rights or
remedies under or by reason of this agreement. 
Without limiting the generality of the foregoing, the parties
acknowledge that nothing in this agreement, expressed or implied, is intended
to 


 


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confer on any present or future holders of any securities of the
Company or its subsidiaries or affiliates, or any present or future creditor of
the Company or its subsidiaries or affiliates, any rights or remedies under or
by reason of this agreement or any performance hereunder.


8.     This
agreement shall be governed by and construed in accordance with the internal
laws of the State of New York.


9.     This
agreement shall continue in effect from year to year unless amended or
terminated by mutual consent.


10.   Each party
hereto represents and warrants that the execution and delivery of this
agreement by such party has been duly authorized by all necessary action of
such party.


11.   If any term
or provision of this agreement or the application thereof shall, in any
jurisdiction and to any extent, be invalid and unenforceable, such term or
provision shall be ineffective, as to such jurisdiction, solely to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable any remaining terms or provisions hereof or affecting the
validity or enforceability of such term or provision in any other
jurisdiction.  To the extent permitted by
applicable law, the parties hereto waive any provision of law that renders any
term or provision of this agreement invalid or unenforceable in any respect.


12.   Each party
hereto waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) related to or
arising out of our retention pursuant to, or our performance of the services
contemplated by this agreement.


13.   It is
expressly understood that the foregoing paragraphs 2-6, 11 and 12 in their
entirety, survive any termination of this agreement.


14.   This
agreement may be executed in counterparts, each of which shall be deemed an
original agreement, but all of which together shall constitute one and the same
instrument.


 


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If
the foregoing sets forth the understanding between us, please so indicate on
the enclosed signed copy of this letter in the space provided therefor and
return it to us, whereupon this letter shall constitute a binding agreement
among us.


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Kohlberg
  Kravis Roberts & Co. L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Brian F. Carroll

  
	
   

  	
   

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  



 


 


 AGREED TO AND
ACCEPTED BY:


 


        Sealy Mattress Company


 


 


	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Kenneth L. Walker

  
	
   

  	
  Name:

  
	
   

  	
  Title: