Exhibit 4.15.4
AMENDMENT AND WAIVER NO. 2
TO CREDIT AGREEMENT
AMENDMENT AND WAIVER NO. 2 TO CREDIT AGREEMENT ("this Amendment"), dated as
of June 15, 2004, 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 amend and waive certain provisions of the Credit
Agreement;
NOW, THEREFORE, subject to the condition precedent set forth in Section 4
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 CREDIT AGREEMENT.
2.1 The Administrative Agent and the Majority Lenders hereby waive the
provisions of Section 5.2(o)(i) of the Credit Agreement as they relate to the
Inventory Appraisal of the Inventory of each Borrower and Foamex Canada required
to be delivered to the Administrative Agent on or prior to June 30, 2004;
provided, that an Inventory Appraisal with an effective date of June 27, 2004 is
delivered to the Administrative Agent on or prior to July 30, 2004 (or such
later date, on or prior to August 16, 2004, as agreed to by the Administrative
Agent).
2.2 Except for the specific waiver set forth in this Section 2, nothing
herein shall be deemed to be a waiver of any covenant or agreement contained in
the Credit Agreement, and the Borrower and Guarantors hereby agree that all of
the covenants and agreements contained in the Credit Agreement are hereby
ratified and confirmed in all respects.
SECTION 3. AMENDMENTS TO CREDIT AGREEMENT.
3.1 The definition of "Restricted Investment" in Appendix A to the Credit
Agreement is hereby amended by (i) deleting the "and" at the end of clause (n)
thereof,
(ii) adding the word "and" at the end of clause (o) thereof and (iii) adding a
new clause (p) which reads as follows:
(p) investments held by Foamex consisting solely of a promissory note in an
original principal amount of $300,000 and preferred stock, in each case
issued in exchange for the Promissory Note in the original principal amount
of $1,802,807 that is set forth as the thirteenth item on Schedule I, by
the issuer of such original Promissory Note.
3.2 Section 7.11 of the Credit Agreement is hereby amended by adding the
parenthetical "(other than sales and issuances by the Parent of equity interests
in the Parent)" immediately following the words "equity interests" appearing in
the fourth line thereof.
3.3 The proviso to Section 7.12 of the Credit Agreement is hereby amended
by adding a new clause (D) immediately following clause (C) thereof which reads
as follows:
(D) Parent may make a dividend in respect of its common stock of rights to
purchase preferred capital stock of the Parent, such rights and preferred
capital stock to be governed by and be subject to a rights agreement and
certificate of designations of preferred stock in form and substance
satisfactory to the Administrative Agent (it being agreed by the
Administrative Agent that a Rights Agreement between the Parent and Mellon
Investor Services LLC, as rights agent, substantially in the form of the
6/9/2004 draft thereof, document NY5:647730.12, and a certificate of
designations, substantially in the form attached as Exhibit A to such draft
agreement, are satisfactory to the Administrative Agent).
SECTION 4. EFFECTIVENESS. This Amendment shall become effective upon the
Administrative Agent receiving counterparts hereof duly executed and delivered
by the Borrower, the Guarantors, the Majority Lenders and the Administrative
Agent.
SECTION 5. COUNTERPARTS. This Amendment may be executed in counterparts,
each of which shall be an original, and all of which, taken together, shall
constitute a single instrument. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6. REFERENCES TO CREDIT AGREEMENT. From and after the effectiveness
of this Amendment and the waiver and amendments 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 amended and
modified by this Amendment, and all references in other documents to the Credit
Agreement shall mean such agreement as amended and modified by this Amendment.
SECTION 7. 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
2
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.
[Remainder of page intentionally left blank]
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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
---------------------------------
Title: Vice President
-----------------------------
FMXI, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Title: Vice President
-----------------------------
FOAMEX INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Title: Senior Vice President
-----------------------------
FOAMEX CANADA INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Title: Treasurer
-----------------------------
FOAMEX CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Title: Vice President
-----------------------------
FOAMEX LATIN AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Title: Vice President
-----------------------------
FOAMEX MEXICO, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Title: Vice President
-----------------------------
FOAMEX MEXICO II, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Title: Vice President
-----------------------------
FOAMEX ASIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Title: Vice President
-----------------------------
FOAMEX CARPET CUSHION LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Title: Vice President
-----------------------------
BANK OF AMERICA, N.A.,
Individually and as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Title: Vice President
-----------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx XxXxxxxx
---------------------------------
Title: Duly Authorized Signatory
-----------------------------
BANK ONE, NA (Main Office Chicago)
By: /s/ Xxxx Khaniaeva
---------------------------------
Title: Associate Director
-----------------------------
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By: /s/ Xxxx Stanza
---------------------------------
Title: Vice President
-----------------------------
CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Title: Vice President
-----------------------------
STATE OF CALIFORNIA PUBLIC
EMPLOYEES' RETIREMENT SYSTEM
By: ______________________________________
Title: __________________________________
ORIX FINANCIAL SERVICES, INC.
By: ______________________________________
Title: __________________________________
XXXXX FARGO FOOTHILL, LLC
By: /s/ Xxxx Xxxxxxx
---------------------------------
Title: Vice President
-----------------------------
