WAIVER
TO CREDIT AGREEMENT
WAIVER TO CREDIT AGREEMENT ("this Waiver"), dated as of March 15, 2005,
among FOAMEX L.P., a Delaware limited partnership (the "Borrower"), the
affiliates of the Borrower party hereto, the lending institutions party hereto
and BANK OF AMERICA, N.A., as Administrative Agent (the "Administrative Agent").
WHEREAS, the Borrower, certain of its affiliates as guarantors, the lenders
party thereto, the Administrative Agent, Banc of America Securities LLC ("BAS")
and GECC Capital Markets Group, Inc., as co-lead arrangers, BAS, as sole book
manager, General Electric Capital Corporation, as syndication agent, and
Congress Financial Corporation (Central) and Bank One, NA (Main Office Chicago),
as co-documentation agents, entered into a certain Credit Agreement, dated as of
August 18, 2003 (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"), pursuant to which such lenders have
agreed, subject to certain terms and conditions, to make revolving advances and
term loans to the Borrower and to issue or to cause the issuance of letters of
credit for the account of the Borrower;
WHEREAS, the Borrower, the Guarantors, the Majority Lenders and the
Administrative Agent desire to waive a certain provision of the Credit
Agreement;
NOW, THEREFORE, subject to the condition precedent set forth in Section 3
hereof, the Borrower, the Guarantors, the Majority Lenders and the
Administrative Agent hereby agree as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used but not defined herein
shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. WAIVER TO THE CREDIT AGREEMENT.
2.1 The Majority Lenders hereby waive compliance with Section 7.24 of the
Credit Agreement (Fixed Charge Coverage Ratio) for the test period ending on or
about December 31, 2004. The foregoing waiver shall not, except for the specific
test period ending on or about December 31, 2004, constitute a waiver of the
terms of Section 7.24 of the Credit Agreement.
SECTION 3. EFFECTIVENESS. This Waiver shall become effective on such date
as counterparts of this Waiver executed by the Borrower, the Guarantors, the
Majority Lenders and the Administrative Agent shall have been delivered to the
Administrative Agent.
SECTION 4. COUNTERPARTS. This Waiver may be executed in counterparts, each
of which shall be an original, and all of which, taken together, shall
constitute a single instrument. This Waiver shall be governed by, and construed
in accordance with, the laws of the State of New York.
SECTION 5. REFERENCES TO CREDIT AGREEMENT. From and after the effectiveness
of this Waiver and the waiver contemplated hereby, all references in the Credit
Agreement to "this Agreement", "hereof", "herein", and similar terms shall mean
and refer to the Credit Agreement, as modified by this Waiver, and all
references in other documents to the Credit Agreement shall mean such agreement
as modified by this Waiver.
SECTION 6. RATIFICATION AND CONFIRMATION. The Credit Agreement is hereby
ratified and confirmed and, except as herein agreed, remains in full force and
effect. Each of the Borrower and the Guarantors represents and warrants that (i)
all representations and warranties contained in the Loan Documents are correct
in all material respects with the same effect as though such representations and
warranties had been made on and as of the date hereof (except to the extent that
such representations or warranties expressly related to a specified prior date,
in which case such representations and warranties shall be correct in all
material respects as of such specified prior date) and (ii) there exists no
Default or Event of Default. Each of the Guarantors hereby ratifies its
Guarantee of the Obligations and its grant of a security interest in the
Collateral in which it has an interest to secure the payment of the Obligations.
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2
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly
executed by their respective authorized officers as of the day and year first
above written.
FOAMEX L.P.
By: FMXI, Inc., its Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FMXI, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Senior Vice President
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FOAMEX CANADA INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Treasurer
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FOAMEX CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX LATIN AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX MEXICO, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX MEXICO II, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX ASIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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FOAMEX CARPET CUSHION LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
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BANK OF AMERICA, N.A., Individually and
as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Vice President
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GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx XxXxxxxx
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Title: Duly Authorized Signatory
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JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Assistant Vice President
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THE CIT GROUP/COMMERCIAL SERVICES, INC.
By:
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Title:
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CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By:
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Title:
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STATE OF CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM
By:
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Title:
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ORIX FINANCIAL SERVICES, INC.
By:
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Title:
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XXXXX FARGO FOOTHILL, LLC
By: /s/ Xxxx Xxxxxxx
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Title: Vice President
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